LATEST NEWS in employment law
PRELIMINARY RULING ECJ
Federal Labour Court
Judgment of 07.07.2020,
Az. 9 AZR 245/19 u. 9 AZR 401/19
BAG DECISION:
On the question of the employer’s obligation to inform in the event of impending expiration of annual leave
According to the BAG, unused vacation days expire 15 months after the end of the vacation year in the event of continued incapacity to work. But what if the employee is not informed of this? The ECJ is now supposed to clarify this...
FEDERAL LABOUR COURT
Urteil vom 11.12.2019, Az. 5 AZR 505/18)
BAG DECISION:
On continued payment of wages in the event of incapacity for work
Continued payment of wages in the event of illness is limited to six weeks. According to the Federal Labour Court, anyone who subsequently takes another sick note must prove in the event of a dispute that the old illness had already been overcome.
"If the employee is unable to work due to illness and this is followed in close temporal proximity by a further incapacity to work attested by way of an 'initial certificate', the employee must, in the event of a dispute, explain and ....
LABOR COURT SIEGBURG
JUDGMENT of 16.12.2020,
Az: 4 Ga 18/20
LABOR COURT DECISION:
On the question of the obligation to wear a mouth and nose mask in the workplace
The employer may require the wearing of a mouth and nose covering during working hours.
The court is of the opinion that the health and infection protection of all employees and visitors to the town hall outweighs the plaintiff's interest in working without a face visor or mouth-nose covering....
FEDERAL LABOUR COURT JUDGMENT of 11.12.2019, Ref. 5 AZR 505/18)
BAG DECISION:
On continued payment of wages in the event of incapacity for work
Continued payment of wages in the event of illness is limited to six weeks. According to the Federal Labour Court, anyone who subsequently takes another sick note must prove in the event of a dispute that the old illness had already been overcome.
"If the employee is unable to work due to illness and this is followed in close temporal proximity by a further incapacity for work certified by means of an 'initial certificate', the employee must, in the event of a dispute, demonstrate and prove that the previous incapacity for work had ended at the time the further incapacity for work occurred",
says a statement from the BAG.
Employees who become unable to work again immediately after the end of a 6-week sick leave due to another illness cannot automatically expect their employer to continue paying their salary. There is only an entitlement to continued salary payment under the Continued Remuneration Act (EntgFzG) if the (previous) illness that originally led to the inability to work has also healed before the subsequent (new) illness begins.
This was the ruling of the Federal Labor Court (BAG) in Erfurt on December 11, 2019.
The employee must therefore prove that the (first) illness has completely healed by the date stated on the sick note.
The lawsuit was brought by a geriatric nurse from Lower Saxony. In 2017, she was initially unable to work for three months due to a mental illness. On the last day of her incapacity to work, another doctor's office certified her as an "initial certificate" of further incapacity to work due to an operation planned for the next day. This lasted around six weeks, during which the woman received neither continued payment from her employer nor sick pay from a health insurance company.
In her lawsuit, the employee demanded around 3,400 euros gross plus interest from her employer. She was unable to work due to a new illness, and her inability to work due to her mental illness had already ended. Her employer saw things differently and was of the opinion that a single case of incapacity should be assumed.
The Senate of the Federal Labor Court ruled in favor of the employer and confirmed a previous ruling by the Lower Saxony State Labor Court (LAG). The plaintiff had not succeeded in credibly demonstrating that she had already recovered from the first (mental) illness before the second illness occurred.
MY NOTE:
Both employees and employers should be aware of the following:
The employee's claim to continued payment of wages from the employer in the event of ongoing illness only exists if the original illness had been completely cured before the new illness began.
It is obvious that this will not always be possible in reality. Employees with chronic or systemic illnesses, recurring symptoms or illnesses that have both psychological and physical components will often simply have difficulty providing this proof.
However, the judges in this case also had one thing in mind, namely to highlight the legislative significance of the 6-week rule: on the one hand, the employer is given legal certainty by specifying the legally limited period of mandatory continued payment of wages in the event of illness. On the other hand, the obligation to provide evidence imposed on the employee by the Federal Labour Court also ensures that simply changing the doctor's office or receiving a different diagnosis after the 6 weeks have passed does not automatically ensure continued payment of wages. The employee is of course not denied this entitlement; on the contrary, he has the opportunity to provide appropriate evidence.
I will be happy to examine your case and support you in enforcing your claims.
Source: dpa/BAG/kp
Stand: 29.05.2020
FEDERAL LABOUR COURT JUDGMENT of 07.07.2020 (ref. 9 AZR 245/19 and 9 AZR 401/19)
BAG DECISION:
On the question of the employer’s obligation to inform in the event of impending expiration of annual leave
In the dispute over the forfeiture of vacation days, the Federal Labor Court (BAG) has referred two cases to the European Court of Justice (ECJ) for a preliminary ruling.
The Luxembourg colleagues are to clarify the question of whether and when an employee's entitlement to paid annual leave can expire if a full incapacity for work or permanent incapacity to work occurs during the holiday year. The Erfurt court announced this on Tuesday (judgment of July 7, 2020, case number 9 AZR 245/19 and 9 AZR 401/19).
The plaintiff in one of the cases has been unable to work since she fell ill in 2017. She had not taken 14 days of vacation that year. In the other case, the plaintiff is recognized as severely disabled and has been receiving a pension for total incapacity for work since December 2014. In court, he claimed that he was still entitled to 34 days of vacation from 2014. In both cases, the employer had not pointed out that the vacation not taken could expire.
When and in which cases does the 15-month period apply?
According to Section 7 Paragraph 3 of the Federal Vacation Act (BurlG), vacation must be granted and taken in the current calendar year. In November 2018, the ECJ ruled that vacation that is not granted and taken by the end of the year does not automatically expire. According to the ECJ, the entitlement only expires if the employee was actually able to take their paid annual vacation. However, this can only be assumed if the employer even asks the employee to take the vacation if necessary and informs them that the vacation not taken will expire at the end of the permissible carry-over period or at the end of the employment relationship.
In the event that the employee was prevented from working during the holiday year for health reasons, the Ninth Senate interprets Section 7 Paragraph 3 of the BUrlG in accordance with a ECJ decision from 2011 (dated January 22, 2012, Ref. C-214/10) to mean that statutory holiday entitlements expire 15 months after the end of the holiday year in the event of ongoing incapacity to work. The ECJ must now clarify whether the holiday entitlement expires after 15 months even if the employer has not fulfilled its obligation to cooperate. The BAG also pointed out that the two plaintiffs could have taken at least part of their holiday before becoming incapable of work.
MY NOTE:
Both employees and employers should be aware of the following:
The pending decision of the ECJ can have far-reaching consequences, especially for employees who are long-term sick or otherwise unable to work. Affected employees should check their possible holiday entitlements before the 15-month period expires and, if necessary, submit appropriate holiday requests to their employer in good time.
The employer, on the other hand, is on the safe side - until the decision is made - if he informs the employee in good time, i.e. if possible before the end of the holiday year in question, that the remaining holiday entitlement will expire 15 months after the end of the holiday year.
I will be happy to examine your case and support you in enforcing your claims.
Source: dpa/BAG/kp
Stand: 15.09.2020
LABOR COURT SIEGBURG - JUDGMENT of 16.12.2020 File number: 4 Ga 18/20
LABOUR COURT DECISION:
On the question of whether and when the employer may order the wearing of a mouth and nose covering during working hours.
- No employment without a mouth and nose coveringThe employer may order the wearing of a mouth and nose covering during working hours.
The facts:The plaintiff is employed by the defendant as an administrative employee in the town hall. In a letter dated May 6, 2020, the defendant ordered that visitors and employees wear a mouth-nose covering in the town hall premises with effect from May 11, 2020. The plaintiff submitted a certificate that exempted him from the obligation to wear a mask without giving any reasons. His employer then instructed him to wear a face visor when entering the town hall and when walking through the hallways and in common rooms. The plaintiff submitted a new certificate that again exempted him from the obligation to wear face visors of any kind without giving any reasons. The defendant did not want to employ the plaintiff in the town hall without a face covering. With an application for an interim injunction, the plaintiff requested in expedited proceedings that he be employed in the town hall without a face covering; alternatively, he wanted to be employed in a home office. The Siegburg Labor Court rejected the expedited applications. The decision is not yet final. An appeal against the ruling is possible to the Cologne Higher Labor Court.The reasons:The health and infection protection of all employees and visitors to the town hall outweighs the plaintiff's interest in working without a face visor or mouth-nose cover. There are also doubts about the accuracy of the medical certificates.It can be assumed that such a certificate must contain concrete and comprehensible information as to why a mask cannot be worn (the Münster Higher Administrative Court has already ruled similarly with regard to the obligation to wear masks in schools). This is because the plaintiff wants to use the medical certificates to obtain a legal advantage for himself, namely the granting of an exemption to enter the town hall without a mask. In this case, there is no right to set up a home office workplace.
Source: ArbG Siegburg PM from 4.1.2021 / Verlag Dr. Otto Schmidt from 07.01.2021 15:52
MY NOTE:
Both employees and employers should be aware of the following:
Although the decision of the Siegburg Labor Court is not yet legally binding, in my opinion it is of fundamental importance for the design of company behavior guidelines in times of pandemics and other situations associated with significant health risks for the entire workforce. The health risks for the workforce of the entire company outweigh the decision of an individual, provided that a nose and mouth mask is worn, the employer is now in a position to minimize the risk of infection by implementing suitable behavioral rules for employees. What is particularly relevant in this question of balancing fundamental rights is the extent of the risk: not only the potential risk of infection for a large number of employees must be taken into account here; those affected are the spread of the virus from the company to the outside, to family members and also to any indirect or direct contact. Last but not least, the economic interests that arise for the entrepreneur in the event of at least a temporary closure of the company are of no small importance.
The employer would therefore have a significant personal interest in making use of the order for such a protective measure, monitoring its implementation and, if necessary, pointing out the corresponding consequences under personnel law. The employee, on the other hand, is on the safe side if he follows such an order, in the spirit of collegiality and humanity.
I will be happy to examine your case and support you in enforcing your claims. Please feel free to contact me at any time without obligation.
Source: dpa/BAG/kp
Stand: 01.02.2020