As long as the employee properly assesses their physical abilities and follows the recognized rules of the respective sport, they retain their right to continued pay in the event of illness. They may risk losing this right if they are injured while participating in the sport. This is because the employee is only entitled to such pay if they are not at fault for the illness.
Not every sports injury is the employee’s own fault
The Federal Labor Court (BAG) recognizes that employees are entitled to engage in physical activity and exercise within customary limits. An employee should not be fobbed off with the argument that the injury would not have occurred without participating in sports and is therefore her own fault.
According to the BAG’s standards, the employee is at fault if they grossly and recklessly violate the rules of a sport. This includes failing to wear required safety gear such as protective gear, helmets, shin guards, or similar equipment. It also applies if the employee engages in sports activities that far exceed their physical strength and abilities. For example, if a beginner skier immediately attempts a “black” run or a hiker tries rock climbing without prior training.
Particularly Dangerous Sports
Furthermore, according to the case law of the Federal Labor Court (BAG), there are sports that are inherently particularly dangerous, such that the mere act of participating constitutes negligence. Injuries sustained while engaging in these sports are not covered by continued pay. The risk of injury in these sports is so high that even a well-trained athlete cannot avoid the risk of injury despite carefully following all the rules. To date, case law has classified only kickboxing as such a dangerous sport, but not motocross racing, amateur boxing, or hang gliding.
Regarding the popular sport of soccer, the Federal Labor Court (BAG) stated as early as 1976: “Although soccer is a competitive sport that requires physical exertion and in which injuries cannot be ruled out (...) participation in a soccer game is a generally accepted and customary sporting activity.”
Termination Due to a Sports Injury
As a possible consequence of a sports injury, an employee may lose their entitlement to continued pay. The employer is therefore not required to continue paying wages, but cannot prohibit the sport itself. Consequently, the employer cannot issue a warning or terminate the employee’s employment if the employee defies a ban on participating in the sport.
Termination would then only be possible for illness-related reasons—provided that the employment relationship can no longer be fulfilled due to a long-term chronic illness or is permanently disrupted by frequent short-term illnesses. Furthermore, there would have to be a reasonable fear that the illnesses will increase in the future. It would be difficult to provide such proof: There is no empirical evidence that sports injuries increase over time.
Exercise During Illness
If an employee is on sick leave, they must not do anything that interferes with their recovery. This depends on the circumstances of the individual case: In cases of depression and other mental health conditions, exercise can even be beneficial; in cases of muscle or skeletal injuries, however, it is more likely to be harmful.
If an employee engages in activities that hinder the healing process, they forfeit their entitlement to continued pay. In addition, they risk receiving a written warning and, in the event of a repeat offense, termination.
Exercise on Vacation
The situation is similar during vacation. Since vacation is intended for rest and recuperation, the employee must not do anything that jeopardizes this recuperation. This is primarily the case if the employee is engaged in gainful employment or, in extreme cases, performs work for another employer.
In principle, it is also conceivable that athletic activity could jeopardize the employee’s ability to rest during vacation, although this would be a particularly exceptional case. There are no relevant court rulings on this matter. In this case as well, the employee risks a written warning and, in the event of a repeat offense, even termination.
