Question of fault in the case of entitlement to continued payment of remuneration in the event of incapacity for work due to alcohol addiction BAG 18.03.2015 - 10 AZR 99/14

Employees are generally not at fault within the meaning of Section 3 (1) EFZG if they are unable to work due to their alcohol dependency. This also applies in the event of a relapse. Whether an alcohol-dependent employee is at fault in the exceptional case of a relapse is determined by a medical expert opinion. Only if this clearly shows that the employer is at fault is the employee not entitled to continued payment of remuneration.

The employee was employed by the defendant in a construction company from 2007 until December 30, 2011. As a result of alcohol poisoning on November 23, 2011 with 4.9 per mille alcohol in his blood, the employee was unable to work for 10 months. The employee had previously undergone two rehab treatments, but relapsed several times. The plaintiff, the employee's statutory health insurance fund, paid the employee sick pay in the amount of EUR 1303.36 for the period from November 29 to December 30, 2011. The plaintiff now claimed this amount by way of a claim for continued payment of remuneration based on a subrogated right. A claim for continued payment of remuneration existed, as the employee was not at fault due to his long-standing alcohol dependency. The defendant is of the opinion that the employee was sufficiently informed due to the multiple therapies he had already undergone and that he was therefore at fault for his inability to work.

After the labor court and the regional court had already upheld the claim, the BAG did not come to a different conclusion. Since alcohol dependency is an illness, the employee may become unfit for work as a result of his dependency. Fault within the meaning of Section 3 (1) sentence 1 EFZG is given if an employee significantly violates the conduct to be expected of a reasonable person in his own interest. According to current medical knowledge, it cannot be assumed that the employee is at fault within the meaning of Section 3 (1) EFZG in the event of incapacity for work due to alcohol dependency, as both the development and a relapse of alcohol addiction have several causes that are mutually dependent. However, in the event of a relapse, the employee's fault cannot generally be ruled out, as various studies show that almost half of those undergoing treatment remain abstinent. Therefore, in the event of a relapse, the lack of fault can be disputed by the employee. A medical expert opinion would then be necessary to answer the question of fault. In this case, however, the expert opinion found that fault was excluded due to the long-term and chronic alcohol dependency - the employee had the typical secondary diseases such as liver cirrhosis and biliary complications - and the resulting addictive pressure.

In principle, therefore, the employee is not at fault in the event of incapacity for work caused by alcohol dependency. The same also regularly applies to a relapse. In this case, only a socio-medical expert opinion can indicate otherwise.

Date: 18. Mar 2015