Spring at the Office: Recurring Incapacity to Work and Pollen Allergies

Quick Hits

• Germany’s Federal Labor Court ruled that recurring seasonal allergies like hay fever may be considered a continuation of the same underlying condition rather than new illnesses.
• Employers can contest sick leave claims for recurring seasonal allergies if the employee has been absent for more than six weeks within the relevant periods, shifting the burden of proof to the employee.
• Employers are generally protected against liability for allergic reactions in the workplace if they respond appropriately to known health risks and do not act with intent to cause harm.

Pollen Allergy as a Potential Continuing Illness

Germany’s Federal Labor Court (Bundesarbeitsgericht (BAG)) addressed this issue in its decision of January 18, 2023 (Ref. No. 5 AZR 93/22). The court emphasized that the existence of “the same illness” within the meaning of Section 3(1) sentence 2 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz (EFZG)) is not automatically excluded even in the case of “recurring (chronic) respiratory conditions.”

Hay fever is typically rooted in a permanent allergic condition that can recur seasonally and lead to incapacity to work. Different symptom presentations—such as sneezing fits, coughing, eye irritation, and difficulty concentrating—may therefore all stem from the same underlying condition.

Recommendations for Employers

Sick leave certificates for recurring seasonal illnesses and documented absences within the six-month and twelve-month periods set out in Section 3(1) sentence 2 of the EFZGare of legal significance. Where an employee has already been absent for more than six weeks during the relevant periods, and the circumstances—such as annual absences during pollen season—suggest a continuing illness, the employer may contest that each episode constitutes a “new” illness and refuse to continue paying remuneration.

In that case, the burden shifts to the employee to explain, in plain terms, the specific causes of the illness for the entire relevant period and to release the treating physicians from their duty of confidentiality. Sick leave certificates alone, ICD-10 codes, or notices from health insurers are not sufficient to meet this burden of explanation. If the employee fails to provide this information, a continuing illness may be assumed, with the result that no further claim for continued remuneration exists.

Protective Measures and Risk Assessment

Section 5(3) No. 2 of the Occupational Health and Safety Act (Arbeitsschutzgesetz (ArbSchG))—governing biological hazards—read in conjunction with the general duty of care under Section 3 of the ArbSchG and Section 618 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)), may give rise to an obligation to address pollen in workplace risk assessments. Employers may want to include allergies in such assessments—even at office workplaces—because they represent real health risks that must be considered legally, regardless of their severity in individual cases or the absence of measurable thresholds.

Key Takeaways—Liability Risks

A decision of the Regional Labor Court of Rhineland-Palatinate (Landesarbeitsgericht Rheinland-Pfalz (LAG Rheinland-Pfalz)), 8th Chamber, dated June 14, 2016 (Ref. No. 8 Sa 535/15), demonstrates that employers are generally protected against liability for allergic reactions in the workplace, provided they respond appropriately to known health risks and have not acted with intent to cause harm. The burden of proof for intentional or grossly negligent conduct lies with the employee and is difficult to meet in practice. Below this threshold, the liability privilege under Section 104(1) of Book VII of the German Social Code (Sozialgesetzbuch (SGB VII)) applies.

Employers that take no protective measures despite knowing that their employees suffer from pollen allergies risk higher rates of absenteeism. However, fines under the Industrial Safety Regulation (Betriebssicherheitsverordnung) and civil liability risks are unlikely in practice.

Ogletree Deakins’ Berlin and Munich offices will monitor developments and post updates on the Germany and Leaves of Absence blogs as additional information becomes available.

Dr. Martin Römermann is a partner in the Berlin office of Ogletree Deakins.

Lela Salman, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

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