Employees are allowed to do this despite being on sick leave – and when termination is imminent

Created: 12/22/2022, 9:40 am

By: Fabian Pieper

If you're sick, stay in bed.

This old principle is only partly true.

Because employees on sick leave are allowed to take part in life – under certain conditions.

Berlin – Germany’s consumers are currently groaning and groaning under a wave of illnesses: flu, colds, RS virus and Covid-19 are keeping an unusually large number of people firmly in their grip.

And even if the courses are mostly harmless, many of those affected stay at home and recover.

The employer likes to see that.

But what if he finds out that you have left the house on sick leave?

Is the warning then the logical consequence?

Anyone who is ill should recover, but can still do certain things despite being on sick leave.

© Marijan Murat/dpa

This depends on the general circumstances and can be assessed differently in specific individual cases - and in the worst case even lead to termination without notice.

But the principle that anyone who is ill stays in bed does not apply in the literal form.

Shopping, drinking coffee, partying despite being on sick leave: What is allowed and what is not

Because in any case, the employee on sick leave can leave their bed and house, for example to go shopping, to go to the doctor or to the pharmacy and to pick up children from the daycare center.

Neither a medical certificate nor the employer can prohibit you from doing this, unless the employee is in an ordered quarantine.

Visits to the doctor and pharmacy in particular fall under the principle: the employee must do everything possible to get well again.

After all, the digital sick note will simplify the procedure from January 1, 2023.

• The five most common reasons for sick leave in Germany in 2021

• 1. Back pain/musculoskeletal disorders (23.2 percent)

• 2. Mental illness (19 percent)

• 3. Injuries (12.4 percent)

• 4. Respiratory system (10.1)

Activities such as having a coffee with friends in a café, buying an Advent wreath for next year or visiting relatives must be looked at in a slightly more differentiated way.

This is permissible as long as the doctor has not expressly prescribed strict bed rest and one feels able to do so without any problems.

However, if you are weakened by a cold, it is better to stay at home.

Because if the boss catches you, it can lead to awkward questions.

However, in such a case, the employer must prove a breach of duty in order to be able to take measures under labor law.

When partying is allowed during sick leave

The situation is different again if you are caught doing leisure activities on the last day of a multi-day sick leave.

If the employee returns to work the next day, many employers are often lenient.

Anyone who is caught with a broken arm or a recently removed wisdom tooth while on sick leave shouldn't expect any consequences either.

After all, a walk, a visit to the café and even a wild party are unlikely to impede the healing process.

However, the fact that it doesn't make a good impression if you celebrate on sick leave is another matter.

In the case of sick leave due to mental illness, on the other hand, leisure activities can even make a major contribution to healing.

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A sick leave does not have to be noticed until the end.

The doctor's sick note is considered a prognosis and not a binding obligation.

If the employee feels fit enough to work again before the end of the sick leave, he may return to work earlier – in fact, he even has to.

If you feel fit but are actually still ill and contagious, your employer can send you back home.

A sick leave before the holiday - and then?

What the employer is not allowed to do: He is not allowed to assign his employees to another area or another department.

A road worker with a broken leg can therefore not be transferred to the office if the employment contract does not provide for such work.

Conversely, however, the employee may offer to change the field of activity for the duration of the recovery process.

An illness immediately before a holiday is treated in the same way as an illness during working hours.

Anyone who takes sick leave may only take vacation if it can be proven that it does not affect their own recovery.

Those who do not take their vacation can at least get their vacation days back for the period of their sick leave.

Sick leave: Then there is the threat of a warning – and then termination without notice

If the employee bends and bends the limits of what is permitted too much, there is a risk of a warning and, in the worst case, even dismissal without notice.

Because if he goes to a party in the evening with demonstrably fresh sick leave due to flu, he exposes himself to the accusation that the illness can only be faked.

The resulting breach of trust justifies termination without notice.

Undeclared work during an illness is usually a reason for termination without notice.

However, the employer must express this immediately after the violation has been identified.

Can I be terminated due to illness?

In the case of repeated, long-lasting or even permanent illness, on the other hand, at most an ordinary termination can be pronounced.

This applies if the prognosis of the sick employee is getting worse (e.g. in the case of severe cancer) or it is foreseeable that he will no longer be able to work - for example in the case of paraplegia.

The employee can then issue an ordinary notice of termination while observing the notice period.

Termination without notice during illness can only be given if the illness is not the reason for the termination but, for example, a breach of trust or another offense that justifies termination without notice.

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If you are not sure what you can and cannot do during your sick leave, you can obtain written permission from your doctor for certain activities.

And if the employee should receive a warning or even dismissal without notice because of alleged misconduct while on sick leave, they should always seek talks with the employer and obtain legal assistance if the measure was unjustified in their opinion.