The case before the German Federal Labor Court
An employee who had worked for his company for a number of years fell ill for an extended period of time in 2019 and 2020. Between August 2019 and August 13, 2020, he was absent for more than 100 working days as he was unable to work. Soon after returning to work, the employee was absent again on multiple occasions because he was unable to work, starting on August 18, 2020, and continuing until September 2020. He was absent for between one and three working days each time and was unable to work for a total of ten working days during this period of time.
However, unlike previously, his employer was no longer willing to continue paying his wages for these last ten days of illness.
The company argued that the employee was no longer entitled to continued payment of wages in the event of illness pursuant to Section 3 (1) sentence 1 and 2 of the Continuation of Remuneration Act (EFZG).
The employee took a different view. These last illnesses were different, new illnesses and not a continuing illness. Therefore, he was entitled to continued payment of wages for these ten days of illness. He wanted to prove this with several initial certificates including the diagnosis codes contained on them. In addition, he provided information about his illnesses at his own discretion. However, he did not want to comment on all of his (pre-existing) illnesses in 2019 and 2020 for data protection reasons.
Employees must provide information about illnesses
As the employer refused to pay even after the employee provided this information, the dispute was ultimately decided before the Federal Labor Court (BAG).
The employer won the case and the court ruled that the employer was not entitled to a further ten days of continued payment of wages.
In the opinion of the Federal Labor Court, the employee had failed to fulfill his graduated burden of proof: He was required to provide more detailed information about his illnesses to enable the employer or the court to assess whether or not he was entitled to continued payment of wages.
According to the Federal Labor Court,
- the employee should have described the course of his illness and the effects of the illnesses on his ability to work at least in layman’s terms and
- release his doctors from their duty of confidentiality.
His arbitrarily selected information regarding some illnesses was not sufficient for the court, nor was the reference to the diagnosis codes of the certificates of incapacity for work.
The Federal Labor Court state that it was not possible to determine whether the illnesses were consequences of the same fundamental illness or not on the basis of the information provided.
Disclosure of illness data versus data protection
Ultimately, the Federal Labor Court also did not share the employee’s concerns regarding data protection.
Although disclosing medical information to the employer or the court would interfere with the right to informational self-determination, in cases where disclosing data is necessary to make a legally correct decision, the interference is both proportionate and justified.
This is because the medical information is the only means for the court to reach a correct decision regarding the employee’s renewed entitlement to continued payment of wages in the event of illness pursuant to Section 3 (1) sentences 1 and 2 of the Continuation of Remuneration Act (EFZG).
Summary of the key facts:
- The entitlement to continued payment of wages pursuant to Section 3 (1) sentences 1 and 2 of the Continuation of Remuneration Act (EFZG) may lapse in the event of a continuing illness.
- If a dispute arises, employees are required to describe the course of their previous illnesses to the employer or the court in layman’s terms as part of a graduated burden of presentation and proof. This enables the employer or the court to reliably assess whether a continuing illness exists.
- An infringement on the right to informational self-determination is justified in this case as data protection aspects play a secondary role here.
