Labour Law: Much to do feat. the autumn flu – working with a doctor’s certificate?

Start-ups need a lot of work. They often employ very motivated staff, who are not likely to stay home and miss work when they just have the sniffles. For start-ups, it can be quite gratifying to see employees come in to work and complete their tasks, even when they are “sick”. On the other hand, there is the danger that these “sick” employees will infect other staff members, resulting in a higher level of absentees. Still, the question remains from a legal perspective as to how start-ups should deal with “sick” employees.

Sick does not necessarily mean unable to work

A sick employee will not always be incapacitated and unable to work due to their illness, and even if employees notifies their employer that they are ill, there still might not be an underlying illness. Look at the following cases:

• Employees who are on sick leave and do not work. The German Continued Remuneration Act (Entgetfortzahlungsgestz - EFZG) applies to this standard legal case.
• Employees who are ill (e.g. a slight cold), but who are not incapacitated by the illness and still go to work.
• Employees, who are not ill but “call in sick”; this is an abuse and a serious breach of their duties.
• Employees, who are on sick leave and have presented their employer with a doctor’s certificate, but feel that they are healthy again before the end of that sick leave and want to go back to work. Is this allowed?

General principle

Employees on sick leave are not obliged to perform their work, nor is it necessarily possible for them to do so. Employees on sick leave are therefore “excused”. Sick leave is an exemption to the general principle of “no work, no pay”. The German Continued Remuneration Act grants employees the right to claim continued pay in the case of illness for a period of up to six weeks (§ 3 EFZG). In contrast, employees have a duty to perform their work when they do not have sick leave. Once an employee’s sick leave ends, the employee must report back to their employer without delay and offer their services again. This can also be accomplished simply by returning to work.

Sick certificate versus health certificate

Under the German Continued Remuneration Act, employees must provide their employer with a doctor’s certificate evidencing their incapacity to work and the expected duration of this incapacity on no later than the third day of sick leave. The employment contract can stipulate that a doctor’s certificate must be provided to the employer for the first day of any sick leave onwards. Pursuant to § 5 para. 1 EFZG, the doctor’s certificate must also state the expected duration of any sick leave. This will be based on a doctor’s prognosis; the employee may be unable to work for a shorter or longer period of time than is stated on the certificate. The doctor’s certificate is merely the employee’s evidence that she or he is ill and unable to work. An employee who has sick leave may go back to work before the end of this leave – even without a “health certificate”. A doctor’s certificate is not a ban on working and is based on a prognosis made at the beginning of an illness. An employee may in fact feel fit again before the end of the sick leave. While it is possible to obtain a doctor’s certificate of health, employment law provisions do not establish a duty on employees to obtain such a certificate.

Duty of care of start-ups as employers

A start-up has various duties of care. If a start-up has knowledge of an employee’s actual incapacity to work, it may neither demand unreasonable performance nor knowingly accept such work. Instead, in accordance with a 1988 judgment of the Regional Labour Court (Landesarbeitsgericht) in Hamm, the employer must instead prevent the employee from working. Where appropriate, employees may provide their employer with assurance, in writing, that they are able to work. However, an employer is still not justified in accepting work from an employee who is clearly incapacitated. The employer must take into account not only its operational interests and the interests of the employee in question, but also the interests of the other employees (risk of infection, etc.).

Liability/Insurance cover

Start-ups can also rest assured on the issue of liability and insurance cover, when employees, who are sick, perform their work. Insurance covers employees who go back to work, despite the fact that they have a doctor’s certificate that still grants them sick leave. This applies both to accidents occurring on the way to or from work and to accidents at work.

Still, if an employer breaches its duty of care, i.e. it allows an employee to work despite knowing of the employee’s incapacity to work, and an accident occurs because of this incapacity (e.g. dizziness as a symptom of high fever), liability can shift from the insurance company to the employer.

Dr Michaela Felisiak
(LL.M., Lawyer)

Dr Erik Schmid
(Lawyer, Licensed Specialist for Labour Law)