The intersection of employment law and health can be particularly fraught, especially when a termination of employment coincides with illness. For employees facing redundancy, the question of continued salary during a period of sick leave is a pressing concern. German labor law provides for continued payment of wages during illness, but the specifics become complex when an employee is already serving notice. Understanding the nuances of Entgeltfortzahlung – the legal right to continued pay – is crucial for both employers and employees navigating this challenging situation.
The core principle underpinning wage continuation during illness is enshrined in § 3 of the German Act on Continued Remuneration (Entgeltfortzahlungsgesetz – EFZG). This legislation stipulates that employees who are unable to work due to illness are entitled to continued payment of their regular wage for up to six weeks. However, this right isn’t absolute and its application within the context of a notice period requires careful consideration. The legal landscape surrounding sick leave during a termination period is often subject to interpretation, and employers may scrutinize sick leave requests more closely, leading to potential disputes.
Understanding Entgeltfortzahlung and the Four-Week Rule
A fundamental requirement for claiming Entgeltfortzahlung is that the employment relationship must have lasted for at least four weeks. This threshold is designed to prevent short-term employees from immediately claiming sick pay. Once this condition is met, an employee who falls ill and is unable to perform their contractual duties is generally entitled to continued wages for a maximum of six weeks within a 12-month period. As Dittmann Hartmann explains, the current high levels of employee sick leave are placing a significant financial burden on companies, particularly following terminations.
However, the situation becomes more nuanced when the illness occurs during the notice period. Even as the right to continued pay still exists in principle, employers are often more vigilant in assessing the legitimacy of the sick leave. They are entitled to request a medical certificate (Arbeitsunfähigkeitsbescheinigung) to verify the employee’s inability to work. The law requires employees to provide this documentation within three days of the start of their illness, and increasingly, this is done electronically.
The Scrutiny of Medical Certificates During Termination
German labor courts consistently recognize the validity of properly issued medical certificates as strong evidence of an employee’s inability to work. The certificate, as stipulated in § 5 Abs. 1 Satz 2 EFZG, effectively removes the employer’s right to withhold payment. However, this doesn’t preclude employers from questioning the timing of the illness, particularly if it arises shortly before or during the notice period. According to legal experts, employers may have grounds to doubt the validity of the illness if there are objective reasons to suspect it is not genuine.
What constitutes “objective reasons” for doubt? This can include a pattern of sick leave coinciding with critical deadlines or the termination period, inconsistencies in the medical certificate, or information suggesting the employee is engaging in activities inconsistent with their claimed illness. In such cases, the employer may request a second opinion from a company-appointed physician (betriebsärztliche Untersuchung). However, this second opinion does not automatically invalidate the original medical certificate; it merely provides additional information for the employer to assess.
Legal Precedents and Employer Rights
The Federal Labor Court (Bundesarbeitsgericht – BAG) has consistently ruled on cases involving sick leave during termination. In a landmark decision on October 26, 2016 (5 AZR 167/16), the BAG affirmed the evidentiary weight of a properly issued medical certificate. This means that, in the absence of compelling evidence to the contrary, the employer is generally bound to accept the certificate as proof of illness and continue wage payments.
However, employers are not entirely powerless. They can challenge the validity of the medical certificate in court if they have reasonable grounds to believe it is fraudulent. The burden of proof lies with the employer to demonstrate that the employee is not genuinely ill. This can be a difficult task, as courts generally give significant weight to the opinion of the treating physician.
Impact of Prolonged Illness Beyond Six Weeks
What happens if an employee remains ill beyond the six-week period of continued wage payment? In this scenario, the employee may be eligible for statutory health insurance benefits (Krankengeld). To receive Krankengeld, the employee must have been insured for a certain period and meet other eligibility requirements. The amount of Krankengeld is typically 70% of the employee’s gross wage, subject to a maximum limit.
Crucially, the notice period continues to run even during periods of illness and subsequent receipt of Krankengeld. This means that the termination date is effectively postponed by the duration of the illness. However, there are limits to this postponement. If the employee is unable to work for an extended period, the employer may have grounds to terminate the employment relationship on other legal grounds, such as a long-term inability to perform the job duties.
Recent Developments and the Current Legal Landscape
As of March 17, 2026, the legal framework surrounding sick leave during termination remains largely consistent with established precedents. However, the increasing prevalence of mental health issues and long-term illnesses, such as Long COVID, are presenting new challenges for employers and courts. Determining the legitimacy of sick leave claims related to these conditions can be particularly complex, requiring careful consideration of medical evidence and individual circumstances.
the ongoing debate surrounding the reform of the German healthcare system could potentially impact the rules governing Entgeltfortzahlung and Krankengeld in the future. Any changes to these regulations would likely have significant implications for employers and employees alike. Recent legal interpretations emphasize the importance of employers adhering to current BAG rulings regarding sick leave during termination.
Key Takeaways
- Employees are generally entitled to up to six weeks of continued wage payment (Entgeltfortzahlung) during illness, even during a notice period, provided they have been employed for at least four weeks.
- Employers can scrutinize sick leave requests during termination, but they must have objective reasons to doubt the validity of the medical certificate.
- A properly issued medical certificate carries significant evidentiary weight in German labor courts.
- If illness extends beyond six weeks, employees may be eligible for statutory health insurance benefits (Krankengeld).
- The notice period continues to run during illness, but prolonged illness may provide grounds for termination under certain circumstances.
Navigating the complexities of German labor law requires careful attention to detail and a thorough understanding of the relevant regulations. Both employers and employees should seek legal advice to ensure their rights are protected. The next key development to watch will be any rulings from the BAG regarding cases involving long-term illness and its impact on termination procedures.
Do you have experience with sick leave during a termination? Share your thoughts and questions in the comments below. Please also share this article with anyone who might find it helpful.