Sick after Oktoberfest?

Employees need to know that - Oktoberfest hangover justifies loss of work

Created: 05/10/2022, 04:50

By: Andreas Thieme

Is your throat itchy and your nose running after the end of the Wiesn?

No wonder with full tents and bad weather.

But the law is on the part of the employees - and even a decent hangover can be considered a reason for illness.

A Munich specialist lawyer gives tips.

Munich – First, a look at the Continued Pay Act helps.

Clause 3 states that there is a right to payment if an employee is unable to work due to illness through no fault of his/her own.

"However, the law does not tell us exactly what an illness is," explains Albert Cermak, a specialist lawyer for labor law.

As early as the late 1980s, however, the Federal Labor Court defined that this meant an illegal physical or mental state.

The “morning after” hangover associated with headaches, nausea, etc. is undoubtedly one such condition.

In 2019, the Frankfurt Higher Regional Court (albeit in a different legal context) saw it that way.

The hangover is usually also self-inflicted.

There is a lot of drinking in the tent at the Wiesn - a hangover is even considered a reason for illness © IMAGO/Wolfgang Maria Weber

Munich: A Wiesn hangover definitely justifies an inability to work

In a judgment from 2016, the BAG once again made it clear that not every careless behavior (unlike, for example, in the law on damages) constitutes such culpability, but only particularly careless or intentional behavior.

One also speaks of fault "against oneself," says Cermak.

The conscious consumption of alcohol is a deliberate behavior.

"At this point at the latest, one comes into individual problems and also difficulties for the employer".

Because he has to prove that there are reasons that exceptionally exempt him from the obligation to continue paying.

"Although the employee does not initially have to disclose the reason for his illness, he is obliged to help clarify the reasons." So if the employer finds out - for example from colleagues - that his sick employee went too far the night before, the employee must make it absolutely clear why he is ill.

Sick after the Wiesn: What you have to tell the boss and what not

It is important for employees: The employer must be notified immediately of the incapacity to work and its probable length, and the certificate of incapacity for work must be presented on the fourth day in the event of an illness lasting more than three calendar days.

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However, the employer can also request an AU certificate earlier, from the first day of the AU.

Cermak advises: "Especially in tense working conditions, employees should pay close attention to compliance, otherwise there is a risk of their salary being reduced by the days of sickness, as well as a warning or, in the event of repetition, even termination."