Continued payment of remuneration in labor law: Your entitlement to wages in the event of illness, etc.

Continued payment of remuneration secures your income if you are unable to work through no fault of your own. The best-known example is continued payment of wages in the event of illness, but the Continued Remuneration Act (EFZG) and other regulations govern other situations such as public holidays or medical care. The legal regulations are complex and involve numerous obligations for employees. It is essential to have a thorough understanding of your rights in order to avoid financial disadvantages and to fully enforce your claims against your employer. This article provides you with a comprehensive overview.

Continued payment of remuneration in the event of illness (Section 3 EFZG)

The central entitlement to continued payment of remuneration arises from Section 3 of the Continued Remuneration Act (EFZG) if you are unable to work due to illness.

Requirements for entitlement

In order for entitlement to arise, four requirements must be met cumulatively:

• Existence of an employment relationship: You must be in a valid employment or training relationship.
• Completion of the waiting period: The employment relationship must have existed for at least four weeks without interruption (Section 3 (3) EFZG). Before the end of this waiting period, you are generally entitled to sick pay from the statutory health insurance fund.
• Incapacity to work due to illness: The illness must be the sole cause of the incapacity to work. Incapacity to work exists if you are unable to perform your contractual work or can only do so at the risk of aggravating your state of health.
• No culpable cause of incapacity for work: The incapacity for work must not be your fault. Fault is only deemed to exist in the event of a gross violation of the behavior that a reasonable person would expect in their own interest. Normal sports injuries or traffic accidents through no fault of your own do not usually constitute fault. The situation may be different in the case of grossly negligent or intentional behavior (e.g., driving under the influence of alcohol, participating in a fight) or the practice of particularly dangerous sports without taking appropriate precautions.

Duration of entitlement

• Principle: Entitlement to continued payment of remuneration exists for the duration of the incapacity to work, but for a maximum of six weeks or 42 calendar days (Section 3 (1) sentence 1 EFZG).
• Continuing illness (Section 3 (1) sentence 2 EFZG): If a renewed incapacity to work is based on the same illness (underlying condition), the duration of the previous incapacity to work is taken into account. A new six-week entitlement only arises if
  • at least six months have passed since the end of the last incapacity to work due to the same illness, or
  • a period of twelve months has elapsed since the beginning of the first incapacity to work due to the same illness.
• Addition of a new illness: If, during an existing incapacity to work, a new, unrelated illness arises that also leads to incapacity to work, this does not extend the original six-week period. However, if the first illness ends and you are still unable to work due to a new illness, a new entitlement period of up to six weeks begins.

Amount and calculation of entitlement (Section 4 EFZG)

• Loss of earnings principle: You are entitled to continue receiving the remuneration you would have earned had you not been unable to work. This is therefore not a lump-sum payment, but compensation for the specific loss of earnings.
• Basis for calculation: All current remuneration components that you received during the relevant reference period are included in the calculation. This includes not only your basic salary, but also variable components such as commissions, performance bonuses, night, Sunday, and holiday bonuses, and benefits in kind. Overtime is taken into account if it was regularly incurred during the reference period and would also have been incurred during the period of illness.
• Reduction of special payments (Section 4a EFZG): Special payments such as Christmas or vacation bonuses may be reduced by the employer by a certain amount for each day of incapacity to work. However, this is only possible if such a reduction option is explicitly agreed in the employment contract, a works agreement, or a collective agreement. The reduction may not exceed one quarter of the remuneration attributable to one working day on an annual average per day of illness.

Notification and documentation requirements (Section 5 EFZG)

Failure to comply with these requirements may jeopardize your right to continued payment of remuneration.

• Notification obligation: You are obliged to notify your employer immediately of your incapacity to work and its expected duration. “Immediately” means without culpable delay, i.e. usually on the first day of illness before the actual start of work. The form of notification (telephone, email) is not prescribed, but should be verifiable.
• Obligation to provide evidence: If your incapacity to work lasts longer than three calendar days, you must submit a medical certificate (certificate of incapacity to work, AU) by the following working day at the latest. Your employer is entitled to request the AU from the first day of illness.
• Electronic certificate of incapacity for work (eAU): Since 2023, contract doctors have generally been sending certificates of incapacity for work to health insurance companies digitally. Employers then retrieve the data electronically from the health insurance company. As an employee, you must still obtain a paper certificate from your doctor for your records and inform your employer of your incapacity for work. However, the obligation to submit the “yellow certificate” does not apply to those with statutory health insurance.
• Illness abroad: If you fall ill abroad, you must notify your employer and your health insurance company as soon as possible of your incapacity for work, its expected duration, and your address at your place of stay.

Employer's right to refuse payment (Section 7 EFZG)

The employer may refuse to continue paying your salary if you culpably violate your notification or documentation obligations. However, this right only applies until the obligation is fulfilled; the entitlement then revives.

In addition, the employer may refuse payment if there are serious, justified doubts about your inability to work. Although the sick note has a high probative value, it is not irrefutable. In the event of justified doubts (e.g., sick leave after announced termination or after refused vacation), the employer can call in the Medical Service of the Health Insurance Funds (MDK) to have an expert opinion prepared.

Continued payment of wages on public holidays (Section 2 EFZG)

If work is canceled solely due to a public holiday, you are entitled to continued payment of wages in the amount you would have received if the holiday had not occurred. The prerequisite is causality: work must have been canceled due to the holiday. Anyone who would have had the day off anyway (e.g., in a part-time model) is not entitled to continued payment.

Further entitlements to continued remuneration

• Medical prevention and rehabilitation measures (Section 9 EFZG): The entitlement to continued remuneration for up to six weeks also applies for the duration of a medical prevention or rehabilitation measure approved by a social security provider (e.g., health insurance fund, pension insurance fund).
• Organ donation (Section 3a EFZG): If you are unable to work as a result of donating organs, tissue, or blood for transfusion, you are also entitled to continued payment of remuneration for up to six weeks.

Special circumstances

• Entitlement in the event of termination (Section 8 EFZG): The entitlement to continued payment of remuneration is not affected by the termination of the employment relationship. If you become unable to work due to illness before or after termination, your employer will continue to pay your remuneration for up to a maximum of six weeks, even if the employment relationship ends during this period.
• Transfer of claims for damages (Section 6 EFZG): If your incapacity to work was caused by a third party (e.g., in a traffic accident), your claim for damages against this third party is transferred to your employer in the amount of the continued remuneration (statutory transfer of claims, cessio legis).
• Impact of short-time work: If you fall ill during short-time work, the amount of continued remuneration is based on the short-time work allowance to which you would have been entitled if you had been fit for work. You will therefore receive sick pay in the amount of the short-time work allowance, which is reimbursed by the Federal Employment Agency.

Limitation compared to other wage replacement benefits

• Compensation in the event of personal incapacity (§ 616 BGB): This entitlement exists if you are prevented from working for a “relatively insignificant period of time” for personal reasons beyond your control. Examples of applicable cases include caring for a close relative who is acutely ill (often only 1-2 days), your own wedding, or a doctor's appointment that cannot be postponed. Important: The entitlement under Section 616 BGB may be restricted or completely excluded by an employment contract or collective agreement, which is often the case in practice.
• Sick pay after the end of continued remuneration (§§ 44 ff. SGB V): If the six-week entitlement to continued remuneration ends, the statutory health insurance fund will pay sick pay if the employee is still unable to work. This is usually 70% of gross pay, but no more than 90% of net pay.
• Maternity pay and maternity allowance supplement (MuSchG): These benefits under the Maternity Protection Act are to be distinguished from continued payment of remuneration in the event of illness. They secure income in the event of medically certified individual employment prohibitions during pregnancy or during the statutory protection periods before and after childbirth.

Conclusion

The regulations governing continued payment of remuneration are complex and involve numerous deadlines and obligations. Disputes often arise, particularly in cases of ongoing illness, termination of employment, or reductions in special payments. In order to avoid financial disadvantages and to fully enforce your claims, it is essential to seek expert legal advice at an early stage. We will examine your individual case and secure your rights vis-à-vis your employer.