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No fee despite initial certification

The legal regulations governing continued pay in the event of illness can be difficult for employers and employees alike. Often there are misunderstandings on both sides as to when the remuneration should actually continue to be paid, because illness is not just illness.

In principle, the employer is obliged to continue to pay the employee who is unable to work due to illness for six weeks. Contrary to what some employers think, this period applies to each illness. More precisely, the six-week entitlement exists if the employee has not been unable to work for at least six months because of the same illness or if twelve months have passed since the beginning of the first incapacity for work because of this illness.

For the employer, the first problem arises at this point, because he does not have the diagnosis, but only a tick from the doctor, whether it is a first or a follow-up certificate. The former means that it was a different disease than the previous one.

This is where a common misunderstanding among employees comes into play, which the BAG once again rejected in a decision of December 11, 2019 (5 AZR 505/18). An initial certificate does not automatically mean that a new six-week period starts and that you are therefore entitled to continued payment.

Principle of unity in the event of incapacity

According to the case law of the BAG, such a claim to continued payment requires that the first incapacity for work had already ended when the second illness occurred. According to the principle of the so-called unity of the incapacitation case developed by the case law, illnesses that overlap in time mean that the period of continued payment of wages does not start again with the first certificate for the second illness.

The burden of proof lies with the employee

With its decision of December 11, 2019, the BAG continued its established case law, according to which the employee has to explain and, in the event of a dispute, to prove that the new illness only began after the previous incapacity for work had ended. The principle of unity in the event of incapacity does not apply to an exception to be made by the employer, but to one of the basic requirements for the right to continued remuneration in the event of illness.

If the employee reports immediately after an exhausted six-week period again with an initial certificate of incapacity for work and the employer denies by invoking the principle of unity of inability to work that incapacity for work has only now occurred as a result of the "new" illness, the burden of presentation and proof for the eligibility requirements for continued remuneration - according to general principles - lies with the employee. Just as he has to prove the fact of the incapacity for work as such, he also has the objective burden of proof for its beginning and end.

To do this, he can initially rely on the medical certificate of incapacity for work. However, if the employer provides significant evidence that the incapacity for work is due to an illness that existed before the medically attested start of the incapacity to work, and to an illness due to which the employee was incapacitated for six consecutive weeks, the Employees can prove the beginning of the “new” illness-related prevention or the end of the “old” incapacity. The release of his doctor from the obligation of confidentiality is available to him for this.

Decision from December 2019

In the case decided by the BAG in December 2019, the plaintiff did not succeed in doing this: It was unable to prove that the initially existing mental illness had ended at the time of a later gynecological intervention. Rather, the evidence revealed that the plaintiff was already waiting for a place for psychotherapy at the time of the new illness and that the medication prescribed for the mental illness was still being prescribed.

Consequences for practice

Against the background of this case law, employers should also put initial certificates to the test. The mere fact that the employee is certified as having a new illness does not necessarily mean that there is an obligation to continue to pay. In particular, if the original incapacity for work was due to a usually chronic illness, a refusal to continue paying due to the burden of proof may possibly be successful. However, it should be noted - as is so often the case with the issue of incapacity for work - that this is ultimately a black box, because final clarity about the beginning and end of the respective illness will usually only be achieved by a possible hearing by the treating doctors.