Being on sick leave does not automatically mean radio silence. Although employees generally do not have to be reachable by the employer during an incapacity to work, exceptions apply in the case of genuine emergencies. A look at labor law and current judgments shows when a short call or email is permissible and what the limits are.
Principle: No general availability requirement despite AU
Anyone who is on sick leave should relax – not constantly have their eyes on the phone. In principle, there is no obligation to be available to the employer during an incapacity to work. This means that calls, emails or text messages do not need to be answered during this time because recovery is the priority.
Legally, this is secured by incapacity to work: the employer’s right of direction is suspended, as AHS lawyers emphasize. However, not every obligation ends with sick leave. According to Section 241 Paragraph 2 of the German Civil Code (BGB), the duty of consideration remains – i.e. the duty not to completely disregard the legitimate interests of the employer.
What remains mandatory: reporting & proof
Even during a sick note, there are clear obligations to provide information and provide evidence. Employees must notify their employer immediately of their inability to work and at the same time state the expected duration. A medical certificate must also be presented no later than the fourth calendar day, as stipulated in Section 5 EntgFG. If the illness extends beyond the originally certified period, a follow-up certificate must be submitted immediately.
And anyone who is abroad during the illness must not only report their inability to work to their employer, but also provide the address where they are staying as quickly as possible – also regulated in Section 5 EntgFG.
Narrow exceptions: When short availability is reasonable
The basic rule is: If you are sick, you do not have to be reachable by your employer. However, exceptions may exist in real emergencies. For example, if only the sick employee has a crucial password, key or file, it may be reasonable to briefly pass on this information despite being unable to work, as the dpa reports.
The benchmark is always the relationship between the operational reason and the individual state of health. A brief and clearly defined query may be permissible if it does not interfere with recovery, as it goes on to say. What is important, however, is that employees do not have to be constantly on call. According to Advocard, a “stand-by” is not required during sick leave.
Limits of contact
In principle, an ill employee is not obliged to appear at the company for a personnel interview. The Federal Labor Court has decided that an exception only applies if an on-site appointment is essential for operational reasons and participation remains possible due to health reasons (BAG, judgment of November 2, 2016 – 10 AZR 596/15).
The boundaries are also clear when it comes to email or access to the work account: without express regulations, the employer is only allowed to access the mailbox in very urgent cases. An out-of-office note is therefore practical and legally secure, as Advocard recommends.
In addition, the Federal Labor Court made it clear in another ruling that short instructions such as reading an SMS may be permissible under working time law, but this cannot be transferred to the case of illness. Recovery is clearly the priority here (BAG, judgment of August 23, 2023 – 5 AZR 349/22).
Practical information for employees and employers
In everyday life, many things can be mitigated in advance. When reporting sick, employees can proactively think about important access or documents – such as a password or a file – and pass them on immediately to avoid later emergencies. Advocard also points out that an out-of-office note in the email program makes sense or can be set up by the manager.
The key remains to avoid any behavior that is contrary to recovery. The Nuremberger explains that even small violations – such as sporting activities contrary to medical recommendations – can have consequences under employment law. Therefore, if in doubt, it is worth asking your doctor what is permitted while on sick leave.
Employers also have a duty: According to the dpa, they should first check all other options before even contacting the sick employee. Only if important information cannot be obtained any other way is a short and gentle query acceptable.
Editorial team finanzen.net