|German Federal Labor Court, decision of December 11, 2019 – 5 AZR 505/18|
In such case, no additional claim for continued remuneration will occur. This does not apply, however, if the first incapacity for work due to sickness ended prior to the date the additional sickness resulted in an incapacity for work. In case of dispute, the employee has the burden of proof.
In the case decided before the BAG, the employee (plaintiff) had been incapacitated for work since early February 2017 due to a psychological condition. The employer (defendant) had continued to pay remuneration until March 20, 2017; subsequently, the plaintiff received sickness benefits based upon her family doctor’s certificates confirming a continued incapacity for work until May 18, 2017. On May 19, 2017, the plaintiff underwent a long-planned surgery due to a gynecological condition. Her doctor confirmed, as initial certification (Erstbescheinigung), her incapacity for work from May 19 until June 16, 2017 and, as subsequent certification (Folgebescheinigung), a continued incapacity for work until June 30, 2017.
During the period from May 19 until June 29, 2017, the plaintiff had neither received continued remuneration due to sickness from the defendant nor sickness benefits from her health insurance. Subsequently, she claimed from her employer an amount of ca. EUR 3,500.00 as continued remuneration asserting that she had been incapacitated for work due to a new condition as of May 19, 2017 which would have resulted in a new claim for continued remuneration. The plaintiff had refused such payment asserting this would constitute a single case of incapacity for work.
The labor court had upheld the complaint; the regional labor court had dismissed the complaint during the appeal proceedings after the questioning of three physicians during the taking of evidence.
The plaintiff’s appeal before the BAG was not successful. According to the BAG, the plaintiff shall be responsible to argue and prove that a preceding illness had already ended when another incapacity for work due to illness occurred. In the case at hand, the plaintiff had not been able to submit such evidence. Therefore, the court could not determine whether or not this was a single case of incapacity for work. According to the taking of evidence’s result, the plaintiff had in particular not been examined by the treating physician when the incapacity for work until May 18, 2017 had been determined; therefore, one could not exclude that such incapacity for work continued to exist upon occurrence of the additional incapacity for work on May 19.
The quoted BAG decision confirms the courts previous case law. If, subsequent to an incapacity for work due to sickness, an employee is sick again, an employer should take a closer look: the employee will have another claim to continued payment only if the first incapacity for work ended prior to the other incapacity for work’s occurrence. Therefore, an employer should carefully examine every medical certificate, in particular in case of two consecutive certificates. It is up to the employee to argue and prove, if applicable, that the first incapacity for work had already ended prior to the second incapacity’s occurrence. In case of any doubt, employers should not pay any continued remuneration but should request the employee to submit corresponding proof.