Working despite sick leave: We clarify the most important questions

It happens time and again that employees drag themselves to work sick. Working from home has become a common issue, especially since people have been working from home more and more.

Basics: Working despite sick leave

There are many terms for a sick note. These include a certificate of incapacity for work or a sick bill. Caution: A sick note is different from a sick note.

A certificate of incapacity for work is issued by a doctor on the basis of his or her examination. The certificate provides a prognosis of the further course of the illness.

Important to know: A sick note is not a ban on employment. It basically fulfills 2 essential functions:

• Determination that the employee is currently ill or unable to work.
• Predicts how long the employee will be absent.

Obligations of the employee

First of all, the employee is obliged to submit a sick note to the employer. If the illness lasts more than 3 days, the employee must submit a sick note. However, if it is contractually agreed that the employee should submit the sick bill after only 1 or 2 days, then the colleague must adhere to this.

If you as an employee wish to go to work despite being on sick leave, you must notify your employer. This notification can be made verbally or in writing.

What is not needed is a kind of “health letter” or similar. Such a document does not exist in the German healthcare system.

However, if the team member does not return to work even after the sick note has expired, this constitutes a so-called performance disruption. In this case, the employer can withhold part of the salary. If such a situation occurs frequently, the employee must expect a warning or even dismissal.

Obligations of the employer

In general, it is permitted to work despite a sick note. However, the employer may use his veto and send the employee home again if he considers this necessary.

According to the law, employers have a duty of care towards all their employees. Accordingly, they must, for example, protect their healthy employees from a sick colleague with flu and can send them home so as not to infect others.

If such a case has negative effects and many others become infected, the employer may well be liable for damages.

It is important to comply with the duty of care. The employer must ensure that the employee’s state of health does not deteriorate as a result of taking up work early.

However, if the employer comes to the conclusion that a colleague is fit for work, all that is required is a (verbal) declaration from the employee that they feel able to work. After that, nothing stands in the way of working despite being on sick leave.

Can the employer demand that you work despite being on sick leave?

The employer may not demand that an employee works despite a certificate of incapacity for work. At this point, the employer’s duty of care still applies.

The employer must first always ensure that a colleague on sick leave is actually fit for work. However, if the colleague is not able to carry out the tasks specified in the employment contract, the employer may not deploy him/her on sick leave.

Are you insured if you go to work despite being on sick leave?

As sick leave does not constitute a ban on work, insurance cover is not suspended if you are on sick leave. Accordingly, as an employee you are still covered by health and accident insurance.

This applies both at the workplace itself and on the way there and back again.

Summary

• In general, working is permitted despite sick leave.
• There is no legal regulation that prohibits this. This is because sick leave does not constitute a ban on work.
• If an employee returns to work early, they are also covered by accident and health insurance.
• If a colleague is on sick leave but the employer deploys him anyway, he is in breach of his duty of care and is liable to pay compensation.