Working despite sick leave

The most important facts in brief

• Employees may work despite being on sick leave if they do not endanger their own health or that of their colleagues.
• The insurance cover remains in place.
• If employers have doubts about the employability of employees, they can send them home again.

‍

Working despite being on sick leave - is that allowed?

First of all, a certificate of incapacity for work is not a ban on employment. Rather, the doctor states that the patient is currently unable to work and estimates how long this condition will last. A sick note is therefore a prognosis of the possible course of the illness. If you feel healthy again earlier, you can return to work even if you have a sick note. You do not need a doctor's permission to do so.

The situation is different for pregnant women, for example: They are absolutely prohibited from working for eight weeks after giving birth. If there are special circumstances, this can even be extended after a medical assessment. If employment is prohibited, you may not return to work any earlier.

The continuity of the insurance cover

The myth that employees who work despite being on sick leave are not insured persists - but it is completely unfounded. Employees who return to work earlier than expected are covered by both sickness and accident insurance. Even those who pop into the office briefly while on sick leave are insured in the event of a commuting accident.

Obligations of employees

Even if employees can decide for themselves whether they want to return to work earlier despite being on sick leave, they must at least inform their employers about the certificate of incapacity for work. They must not conceal it. When it comes to health, it is particularly important to be honest with yourself and not overestimate your abilities. Anyone who realizes that starting work early was a little too early after all should talk to their employer and take some time off. You also owe it to your colleagues, and it's better not to infect them.

The duty of care of employers

As an employer, you have a duty of care for your employees. This means that you must take measures to guarantee the safety and health protection of your employees (§5 ArbSchG). If one of your employees returns to work despite being on sick leave, you should therefore make sure that he or she really is fit for work. If this is not the case, you should send him or her home or at least to the company doctor. Otherwise, you could be liable for damages. Employees who are actually still too ill to return to work are exposed to a higher risk of injury. In addition, the symptoms of illness can worsen due to excessive strain. Colleagues run the risk of also becoming infected.

You cannot ask your employees to submit a medical certificate or anything similar - this is not possible under German law. However, if you have any doubts about their state of health, you can ask them to see a doctor again or send them to the company doctor.

Presenteeism and its dangers

Working despite being on sick leave - this phenomenon is so common in our modern working world that it has been given its own name: presenteeism. Since many employees have been working from home during the coronavirus pandemic, the number of people continuing to work despite being ill has also increased. This can lead to illnesses getting worse or lasting longer. Studies have also shown an increase in cardiovascular diseases in this context. The economic costs caused by presenteeism are comparable to the costs caused by sick days.

Case studies

Whether it is detrimental to employees or your company if employees on sick leave return to work early naturally depends on the specific case. The following examples should help you to better distinguish whether the presence of an employee on sick leave is perfectly acceptable or whether you should send him or her home again.

1. Jochen has broken his arm playing soccer and has been put on sick leave by his doctor. He doesn't show up for work - he can't do his job as a tiler with one arm either. However, he now has to attend an important theoretical training course on safety standards and building regulations. Although Jochen is on sick leave, he can take part in the training without hesitation: There is no risk of infection and, as the content of the training is purely theoretical, Jochen can continue to rest his arm despite working. Furthermore, Jochen's employer does not run the risk of becoming liable for damages.
2. Maria works in the legal department of a large corporation and is on sick leave with the flu. She is feeling a little better, but is not yet fully recovered. Nevertheless, she decides to return to work early - after all, there is an important settlement coming up in which she has to defend the company. She works closely with her colleagues, often late into the night. In this case, Maria's line manager should send her home. The work and the regular overtime are simply too much for someone who has not recovered from the flu. The risk of spreading the illness is very high. There is also a risk that Maria will make mistakes in her condition, which could harm both the company and herself. Working closely with colleagues also increases the risk of infection. If this were to happen, the affected employees could assert claims for damages against the employer.

‍

Conclusion

Working despite a sick note - this is legally possible, as the certificate of incapacity for work merely represents a prognosis of the possible further course of the illness and does not constitute an absolute ban on employment. The regular insurance policies also apply if employees come to work despite being on sick leave. Nevertheless, employers should ensure that the employees concerned are really fit for work and send them home if necessary. Failure to do so could result in claims for compensation. In general, employers should cultivate a corporate culture that encourages employees to prioritize their health and that of their colleagues.

‍