There is no entitlement to continued payment of remuneration if, during or following an incapacity to work based on one illness, another illness occurs which causes a new incapacity to work. A claim to continued remuneration is only reinstated when the illness underlying the first sick leave has ended before the new illness occurs.

In the case on which the ruling is based, an employee who was initially unable to work for about three months (from February 7 to May 18, 2017) due to a mental illness claimed continued remuneration from her employer for a subsequent period. To this end, she submitted a new doctor’s certificate certifying the begin of a new illness for the period from May 19 to June 30, 2017. The reason for the new illness was an operation that she had planned for a long time and that was not connected to the previous illness.

The employer refused to pay. Despite the new certification, he assumed that there was a uniform prevention which did not trigger any further entitlement to continued payment of remuneration.

After the Labor Court had upheld the employee’s complaint, the State Labor Court decided in favor of the employer. The Federal Labor Court now agreed with the State Labor Court.

The Federal Labor Court justified its decision with reference to the principle of the unity of the case of prevention. In principle, the claim to continued remuneration for sick leave based on the same illness is limited to six weeks. This does not change if a new reason for the sick leave is triggered due to a different underlying illness while the employee is still on sick leave.

In such a case, a renewed claim to continued payment of remuneration can only be considered if the first illness has already ended by the time the second illness occurs. The burden of proof fell on the employee. The decisive factor here was not the presence of certain symptoms, but the existence of a basic illness which, despite any change in symptoms, was to be regarded as a uniform illness.

In the present case, the employee was not able to prove that the first – mental – illness had in fact been cured, so that she could not claim renewed continued remuneration.

The Federal Labor Court’s decision contributes to preventing abuse of the principle of continued remuneration by submitting initial certificates immediately after or during an existing illness. For the court clarifies that the employee must not only demonstrate and prove that they are ill and when this illness first occurred, but that they also bear the burden of proof that the previous illness was completely cured at the time the second illness manifested.




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