Update Employment Law February 2020

"New illness" = new entitlement to continued remuneration?

BAG [Federal Labor Court], judgment of Dec. 11, 2019 – 5 AZR 505/18

In the event of illness, employers must continue to pay employees their salary for a period of six weeks. In the event of dispute, employees who are signed off sick again with a different, "new" illness right after the six-week period has passed, must demonstrate that they had already recovered from the old illness. Only in this case, the employee is entitled to claim continued remuneration.


An employee was initially signed off sick for a period of more than three months due to a mental illness. Immediately after this period of inability to work, the employee was signed off sick by another doctor due to a scheduled operation. The certification of inability to work was granted to the employee for the scheduled operation as a "first certification" for another period of six weeks. During this period, the employee received neither her salary nor a per diem payment for sickness from her health insurance provider.

Immediately upon expiry of the certification of inability to work due to the operation, the employee began psychotherapy with a neurologist. 

She believes that her employer owes her sick pay in the amount of about EUR 3,400 (gross) for the period of her inability to work due to the operation and the related "first certification". 

The Labor Court of Hannover ruled in favor of the claimant. The Labor Court of the State of Lower Saxony reversed the decision and rejected the claim after taking evidence by questioning three medical doctors.


The employee’s appeal at the Federal Labor Court was unsuccessful. Prevailing opinion is that the employee could only claim sick pay from the employer if she could prove that she had recovered from the original inability to work by the time the new inability to work took effect. 

The employee was not able to establish this in the present case. The evidence of the Labor Court showed that it could not be determined with certainty whether there was a single cause of absence in this case or not. None of the doctors questioned could confirm that the mental illness had been cured by the time of the expiry of the relevant (first) certification of inability to work. 

According to the Federal Labor Court, doubts in this regard are at the expense of the employee due to the employee´s burden of proof and lead to the conclusion that the employee is not entitled to ongoing remuneration.


Particularly in the event of tension in the employment relationship, some employees tend to avoid the situation using "yellow notes" (sick notes), sometimes for months at a time.

Before continuing to pay remuneration, employers should first determine whether an employee actually has a claim to such a payment. 

The issuing of an "initial certificate" following at least six weeks of incapacity for work does not necessarily lead to a renewed entitlement to continued remuneration. In such a case, the employee must first prove that his "old illness" had healed by the end of the relevant certificate of incapacity to work. Experience has shown that this is often not the case with a "mental illness", or at least a case of incapacity cannot be ruled out, thus destroying the employee's right to continued payment of remuneration.

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