Can I be fired while I’m sick?
Dr. Till Bender: Yes. Contrary to rumors to the contrary, an employer is not prohibited from terminating an employee’s employment while the employee is on sick leave.
Can I be fired because I’m sick?
Yes. However, this requires that there be an unreasonable number of absences, the prognosis for the future must be negative, and a balancing of interests must favor the employer. The labor courts review these three points.
How often can I be sick without putting my job at risk?
The general rule is that the employer must accept up to 30 days of absence per year. If an employee is sick for more than 30 days (i.e., 6 weeks) in a year, this is generally considered unreasonable.
When should I expect to be terminated?
The courts always review the three years immediately preceding the termination. If the employee has been sick for more than 30 days in each of those three years, termination is a possibility. This is referred to as frequent short-term absences due to illness. Termination is also likely in cases of permanent or long-term inability to work.
What does a negative prognosis mean?
In cases of termination due to illness, the courts assess whether, given the employee’s state of health, it is likely that they will continue to be absent for more than 6 weeks per year due to illness in the future. If unreasonable absences are anticipated, this constitutes a negative prognosis for the future. If someone is ill for a long time, it depends on whether a recovery is expected and/or whether they are still able to perform their job.
What factors play a role in assessing the prognosis?
The type and frequency of the illnesses are the primary factors here. If an employee has an accident or, for example, undergoes an appendectomy, it can or must be assumed that there will be no further absences. However, if an employee is repeatedly unable to work due to the same condition, it is reasonable to assume that a chronic illness is present that will repeatedly lead to an inability to work.
Do the illnesses have to be serious?
No. Termination may also be justified if an employee is repeatedly absent for more than 6 weeks throughout the year due to bronchitis or back pain, thereby preventing them from performing their job.
How does the court assess my health condition?
A statement from the health insurance provider detailing periods of incapacity for work over the past three years must always be submitted to the court. This statement must include the diagnoses. The court may then seek opinions from the treating physicians. If the prognosis cannot be assessed based on this information, a medical expert opinion may be obtained.
What factors play a role in balancing the interests involved?
From the employer’s perspective, it depends on whether—and what kind of—problems arise in replacing the sick employee. It also depends on the cost of continued pay. From the employee’s perspective, the courts always give special consideration to the length of the employment relationship. The longer the period of employment—and thus the older the employee—the more consideration is required of the employer. It is also important whether a workplace reintegration program was implemented.
What is a workplace reintegration program?
If employees are unable to work for more than six weeks continuously or repeatedly within a year, the employer must consult with the works council (and, in the case of severely disabled individuals, also with the representative for severely disabled employees) to determine how the inability to work can best be overcome and what benefits or assistance can prevent a recurrence of the inability to work and help retain the employee’s job. If the employer fails to comply with this requirement, the termination is not automatically invalid, but this failure will be taken into account when balancing the interests involved.
Note: IG Metall members are represented free of charge by attorneys from DGB Rechtsschutz GmbH in labor and social courts, if necessary. The first point of contact for problems is the local IG Metall office. Further information is available here.
