No Continued Remuneration in Case of Illness-Related Absence Following a Tattoo

In its judgment of 22 May 2025 (5 Sa 284 a/24), the Schleswig-Holstein Regional Labor Court (Landesarbeitsgericht – LAG) decided of practical significance regarding continued remuneration in the event of illness.

What Happened?

The proceedings centered on the question of whether an employee is entitled to continued payment of remuneration if she becomes unable to work due to a skin infection following a tattoo. The plaintiff was employed as a care worker by the defendant. The plaintiff had a tattoo applied to her forearm. Shortly thereafter, an infection developed at the tattooed site, resulting in four days of incapacity for work. The defendant refused to continue paying remuneration for the days of absence, arguing that the plaintiff was responsible for her own illness.

Legal Background

According to Section 3 (1) sentence 1 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz – EFZG), an employee is only entitled to continued remuneration in the event of illness if the incapacity for work occurs “through no fault” of the employee. But what does “fault” mean in this context? Case law requires a gross violation of the employee’s own interest in maintaining their health – i.e., particularly reckless or intentional conduct.

The Court’s Decision

The Regional Labor Court stated in its judgment that such fault may be present in the case of medically unnecessary procedures such as tattoos or cosmetic surgery. Anyone who voluntarily undergoes such a procedure knowingly accepts the associated risks, in particular complications such as infections. The court assumed that skin infections after tattoos occur in up to 5% and therefore cannot be considered rare complications. The assessment that up to 5% is not rare is based on a comparison with side effects of medications. Side effects occurring in more than 1% of cases are classified as “common.” The plaintiff therefore had to expect such a consequence.

The court dismissed the employee’s claim. It considered the decision to get a tattoo and the associated risk of infection to be at least conditionally intentional conduct. The plaintiff not only accepted the tattoo itself, but also the possibility of a complications. Since the incapacity for work did not occur “without fault,” the plaintiff was not entitled to continued payment of remuneration.

Practical Implications for Employers

For employers, this judgment provides important clarification: If an employee becomes unable to work following a voluntary, medically unnecessary procedure such as a tattoo, and the illness is a typical, foreseeable complication (e.g., an infection), there is generally no entitlement to continued remuneration. Employers may refuse payment in such cases, provided there is a connection between the procedure and the illness. However, it should be noted that, in the event of a dispute, employers must demonstrate and prove that the incapacity for work was due to a complication of the procedure and that the employee should have anticipated this.

Outlook

Since this is not a decision by the highest court, it remains to be seen whether the Federal Labor Court (Bundesarbeitsgericht – BAG) will decide similarly. While the Regional Labor Court aligns itself with the Federal Labor Court´s case law on the concept of fault, it takes its own approach regarding voluntary cosmetic procedures: It assumes fault if the employee should have expected typical complications. In contrast, in the case of sports accidents, fault is only assumed if the employee engages in sporting activities in a manner that clearly exceed their own abilities and exposes themselves to uncontrollable dangers, as is the case with particularly dangerous sports. The mere frequency of injuries in sports such as soccer does not mean that these are considered high-risk sports within the meaning of the Continued Remuneration Act. The Regional Labor Court also did not answer the question whether there could be an entitlement to continued remuneration in the case of extremely rare complications following voluntary procedures. The legal situation therefore remains uncertain and requires clarification by the Federal Labor Court.

Recommendation for Employers

Employers could raise awareness of this issue among HR departments and managers. If the employer becomes aware of such procedures and related complications, at least a provisional withholding of continued remuneration and further inquiries may be considered.

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