Continued payment of wages in the event of illness
November 20, 2010 | 30,00 EUR | answered by Tobias Rösemeier
I work in shift work with a regular duty roster in which I do not reach my weekly target working hours when completing the regular shift sequence. In order to reach them, I work additional shifts for holiday replacements, sick leave replacements, or further training. These additional shifts are usually confirmed in writing and always entered in the current duty roster as regular shifts.
I am aware that I will receive continued payment of wages in case of sickness.
Now my first question: Does the continued payment of wages also apply if I take on an additional shift, for example for a holiday replacement, which is entered in the duty roster, and then fall ill on that day?
Second question: If not, is the entered shift binding for me at all?
My employer claims that the shift is only binding for the employee and there is no right to continued payment of wages, meaning that if you fall ill for an additional shift, it will simply be cancelled and the hours will not be credited.
Third question: Can the employer regulate this through a company agreement under the above conditions?
Thank you in advance.
Dear inquirer,
Thank you for your inquiry, which I would like to answer as follows. I would like to point out that adding or omitting essential elements of the situation can lead to a completely different legal result. With that said, I will answer your questions as follows:
Your entitlement to continued payment of wages in case of illness is governed by § 3 in conjunction with § 4 (1) of the German Continued Remuneration Act (EFZG). § 3 EFZG states that an employee is entitled to continued payment of wages if they are prevented from working due to incapacity for work as a result of illness. § 4 (1) EFZG determines the amount of wages to be continued. It is necessary to continue paying the wages that the employee would be entitled to based on their regular working hours. Therefore, § 4 (1) EFZG generally establishes the principle of wage loss for continued payment. The wages to be continued are those that the employee would have earned if they had not been ill but had worked instead. An exception to this is only contained in § 4 (1) a EFZG, which exempts additional wages for overtime and benefits for expenses incurred by the employee that would not occur during the incapacity for work from the obligation to continue paying wages.
Therefore, in the case described by you, a claim under §§ 3 (1) in conjunction with § 4 (1) EFZG cannot be denied. Due to the short-term work assignment, the employee is obligated to work. The employer has exercised their right to issue directions and extended the obligation to work through their announcement of the special shift to be worked. Accordingly, the employee is obligated to work. If work is not performed due to illness, it is irrelevant whether the obligation to work arose suddenly or had been established long-term. The law does not differentiate based on whether the duty to work for a specific workday arose from a sudden directive or had been established long-term. The missed working time includes even one-time special shifts if it is certain that the employee - if they had not become incapacitated for work - would have participated in them (see Schmitt, Continued Remuneration Act, 5th edition 2005, § 4 EFZG para. 32 et seq.).
An alternative regulation can only be made through a collective bargaining agreement.
The authorization basis for a collective bargaining agreement deviation from the legal provision to the detriment of the employees is only § 4 (4) EFZG. According to this provision, a different basis for determining the wages to be continued can be established by a collective bargaining agreement. Therefore, this provision only allows for a different basis for determining the wages to be continued to be established through a collective bargaining agreement. The provision does not allow for other regulations regarding whether the continued payment of wages for a specific period of incapacity for work is otherwise regulated, but only the "how" - i.e. the amount of wages to be continued for a specific period of incapacity for work. The key aspects of § 4 EFZG are therefore not subject to the discretion of the parties to the collective bargaining agreement; only deviations regarding the calculation basis are possible.
If there is no collective bargaining agreement in place, an alternative regulation cannot be brought about through a works agreement.
As a result, you are also entitled to continued payment of wages for special shifts, and any deviation can only be made through a collective bargaining agreement.
I hope I have provided you with some initial legal guidance.
Best regards,
Tobias Rösemeier
- Attorney
