Continued payment of wages: entitlement, amount and rights

When is there a right to continued payment of wages?

According to the Remuneration Continued Payment Act (EntgeltFZG), employees who have become unable to work through no fault of their own are entitled to continued payment of their wages by the employer for a period of six weeks. The legal requirements for continued payment of wages are in detail:
· An employee's illness.

· Incapacity for work of the employee due to illness.

· This incapacity for work must prevent the employee from performing his work.

· The employee must not be responsible for the incapacity for work.

· The employment relationship must have existed for at least four consecutive weeks beforehand.

When does a disease exist within the meaning of the law?

There is no legal definition of the term "illness". According to traditional jurisprudence, illness is described as an "irregular state of body or mind" which "becomes noticeable in the need for medical treatment or inability to work."

Only health processes that run contrary to the rules are regarded as illnesses. For this reason, for example, a normal pregnancy is not a disease. Likewise, neither an age-related decline in workforce nor complaints that can be traced back to a natural physical handicap fall under the definition of illness.

In addition, only those diseases are relevant under labor law that make it objectively impossible for the employee to perform his work. Therefore z. B. a slight hay fever is not counted as an illness in the sense of labor law.

When is an inability to work through no fault of your own?

Inability to work according to Section 3 of the Continued Remuneration Act exists if the illness makes it impossible for the employee to provide the service owed under the employment contract, or if the employee can only continue his work at the risk that his state of health will deteriorate in the foreseeable future.

Then z. B. a foot injury for an employee who works standing, justify an incapacity for work. On the other hand, an employee who sits while he is employed would be considered fit for work with such an illness.

There is no incapacity for work if it was not an illness but, for example, cosmetic surgery (e.g. removal of a tattoo) that led to the loss of work. Likewise, there is no incapacity for work if you only attend an outpatient doctor's appointment. In this case it is rather an inability to work.

Incapacity for work is not culpable if the employee did not cause this condition through gross negligence, recklessly or even willfully. In any case, according to the case law, a "gross neglect of health" is necessary for the assumption of fault within the meaning of the Continued Payment Act.

In the case of accidents, fault is generally only present if they were caused deliberately or through a gross violation of the behavior to be expected from a "reasonable person". Therefore, accidents that were caused under the influence of alcohol are usually considered to be at fault. Likewise, traffic accidents are to be regarded as culpable if they can be traced back to an intentional or negligent violation of traffic rules.

In the case of sports accidents, fault can be assumed if it is an extremely dangerous sport, the person who does sports violates recognized sports rules in a particularly gross and careless manner or has clearly exceeded their own performance. One speaks of a particularly dangerous sport when the risk of injury cannot be ruled out even for a well-trained athlete. When this is the case must be clarified on a case-by-case basis - if necessary by an expert report. The Federal Labor Court has not yet classified any sport as particularly dangerous in general.

According to case law, addictions such as alcohol, tablet or drug addiction are generally considered illnesses within the meaning of the Remuneration Act.

Incapacity for work through no fault of one's own within the meaning of Section 3 EntgeltFZG also applies to an inability to work that is the result of a lawful sterilization or a lawful termination of pregnancy.

How high is the continued payment of wages?

During the first six weeks of your inability to work due to illness, you are entitled to the full amount of the remuneration you are entitled to for regular working hours. However, this does not include remuneration z. B. for overtime or other additional services by the employer (§ la EntgeltFZG). In the collective agreement, however, different assessment bases for continued wage payments can be determined.

After the six weeks, you are entitled to sickness benefit from your health insurance company for a maximum of 78 weeks. This amounts to 70 percent of your regular wages (§§ 44 ff. Social Security Code V).

Continued payment of wages - important judgments

Continued payment of wages during the cure
An employee is entitled to continued payment of his salary during a cure if this has been approved by a social service provider and the sick person is treated as an inpatient in the spa. This includes accommodation, meals and medical care for the employee.
BAG, January 19, 2000 - AZ: S AZR 685/98

Alcohol addiction to blame
When it comes to the question of whether an employee is responsible for his or her alcohol dependency, the employer must - as in all other cases of physical or mental illness of the employee - explain and prove the culpability.
The employee is obliged to cooperate in the clarification of all circumstances relevant for the occurrence of the illness.
BAG, 7 B. 1991 - AZ: S AZR 410/90

Tips no wages
Unless otherwise expressly agreed, tips that the waitresses in restaurants receive from guests are not part of the remuneration to be paid by the employer in the event of illness-related incapacity.
BAG, June 28, 1995 - AZ: 7AZR 1001/94

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