Changing causes of illness: A new illness does not automatically lead to further continued payment of remuneration, BAG, 11.12.2019 - 5 AZR 505/18

In its decision (currently only available as press release no. 45/19), the BAG clarified that the statutory entitlement to continued remuneration in the event of illness is also limited to a period of 6 weeks if a new illness occurs during the existing incapacity to work, which is based on a different underlying condition and also results in incapacity to work (principle of unity of the insured event). A new entitlement to continued payment of remuneration therefore only arises if the first illness-related incapacity to work had already ended at the time when the further illness led to the incapacity to work.

The facts of the case: A female nurse was initially unable to work due to a mental illness from February 7 to May 18, 2017. Immediately afterwards, on 19 May 2017, her gynaecologist issued an "initial certificate" stating that she was unable to work due to a gynaecological operation and a follow-up certificate stating that she was still unable to work up to and including 30 June 2017. In July 2017, the employee no longer performed any work due to the leave and overtime compensation she had been granted. For the period from May 19 to June 30, she received neither continued remuneration from her employer nor sick pay from her health insurance fund.

In court, the woman demanded that her employer pay her salary for a further six weeks, as she had been unable to work due to a new illness. Her employer took a different view: a single case of incapacity was to be assumed. The claimant was therefore only entitled to sick pay once for a period of six weeks. She had fulfilled this entitlement. The labor court upheld the claim, the regional labor court dismissed the claim - after taking evidence from three doctors.

The decision: If the employee is unable to work due to illness and this is followed in close temporal connection by a further incapacity to work certified by way of the "first certificate", the employee must demonstrate and prove in the case in dispute that the previous incapacity to work had already ended at the time the further incapacity to work occurred, according to the BAG. The plaintiff did not succeed in proving this in the present case. The Regional Labor Court took comprehensive evidence by questioning the doctors treating the plaintiff. Accordingly, it could not be established that there was no single case of incapacity.

Conclusion: Employers should be careful not to "blindly" continue to pay remuneration as soon as an employee on sick leave submits another initial certificate. It should be checked whether the new illness is closely related to the first illness.

Date: 10. Jan 2020