Anyone who is certified as unable to work again following a sick leave period must also notify their employer of this subsequent illness immediately. The Federal Labor Court (BAG) has ruled: If an employee fails to provide this notification, they risk receiving a written warning and, in the worst case, termination (BAG, May 7, 2020 – 2 AZR 619/19).
The Case
A warehouse worker with many years of service had been continuously ill for about a year. Because he had repeatedly failed to report the continuation of his inability to work, his employer did not know when he would return to work. Despite several warnings, the employee failed to fulfill his obligation in a timely manner: Although he submitted a follow-up medical certificate, the employer had by then deemed the employment relationship to be irretrievably broken and terminated it with due notice.
In the lawsuit, the Baden-Württemberg Regional Labor Court dismissed the employer’s appeal. The reason: A delayed notification in the case of a long-term illness is less serious for the employer because the employer should have anticipated the illness’s continuation.
Federal Labor Court: Employers Must Be Able to Plan
The judges at the Federal Labor Court saw it differently and made it clear: There was no reason to assume that the likelihood of recovery would decrease with the number of sick days. The employer must have planning certainty and be able to trust that the employee will be able to return to work after the reported illness has ended. This also applies in the case of a long-term illness. Depending on the circumstances of the individual case, this may therefore socially justify termination for cause. However, a comprehensive balancing of the interests of both parties must always take place. This includes determining whether and what disruptions to business operations have occurred.
Guide: How do I write a sick note?
Guide: Unable to Work Due to Illness: What You Need to Know
Guide: On sick leave—what am I allowed to do?
