In this article, I will address the topic of termination during illness. There are still many misconceptions about this subject that I hope to clear up here. Because much of what is said, especially on this topic, still comes from the realm of myths and legends.
Termination while one is ill: Many people believe this is not possible. But is that really true? Do I have protection against termination solely because I am ill? Or can the illness itself even be the reason for which I can be terminated? Let’s take a look.
Termination in Case of Illness
Here comes a cold, then a cough, maybe also some chills. Anyone can get sick; no one is immune. There are also so-called “hardcore” employees who, for whatever reasons, drag themselves to work with a cold just to avoid being terminated. Others stay home at the slightest sign of a disease they have Googled. In cases of particularly severe or even chronic illnesses, things look somewhat different.
The same applies in cases of temporary or permanent incapacity for work, such as due to an accident. As an employee, one is already mentally stressed enough by such a situation; then there is also the uncertainty of whether one can keep the job and will not be terminated due to the illness case.
Prerequisites for Termination in Case of Illness
The cold, cough, or chills mentioned above are not grounds on which an employer can terminate an employee. Such illnesses usually do not last long, and one is relatively quickly fit and ready for work again. This should be clear to everyone. I have already listed the reasons for termination in this article; there is still a small but fine difference in case of illness.
Termination in case of illness is not impossible, but it is subject to special hurdles and must be considered as a termination due to personal circumstances. Therefore, it is possible to be dismissed even in case of illness. This happens whenever the illness makes improvement unlikely.
To be terminated in case of illness, three conditions must be met for the whole thing to become “legal”:
Negative Health Prognosis
At the time of dismissal from the hospital, rehabilitation, etc., it is not foreseeable when the employee will be fit again and able to resume work (long-term illnesses). However, even with repeatedly short-term illnesses, it must be expected that the employee will be absent due to illness in the future as well.
ATTENTION: Even frequent short-term illnesses can be grounds for termination. This is the case when frequent absences lead to a negative health prognosis.
In a protection against termination lawsuit, the employee must prove that the alleged negative prognosis by the employer is not true. However, it is not enough for the employee to simply claim that they are fit for the job regardless of their illnesses. Rather, they must submit an expert opinion from their treating doctors certifying that the illnesses will no longer play a role in the future and that the doctors see a positive health development. The doctors must be released from confidentiality obligations. This follows from a landmark ruling by the Federal Labor Court. BAG 20.11.2014 – 2 AZR 755/1
Impairment of Employer’s Interests
The interests of the employer in economic and operational terms are significantly impaired by the employee’s absences. That is, the absences disrupt business operations or the continued payment of wages during illness puts the company in a difficult situation.
Balancing of Interests
This must be done by the employer beforehand. That means they must consider their interest in termination and the employee’s interest in the continuation of the employment relationship. In doing so, they must take into account the time the employee to be terminated has been employed in the company, the sick days of comparable employees, and the reasons for the illness. The entrepreneur must check whether the employee cannot be assigned to another task within the company. If they still conclude that this leads to an impairment of interests, they may terminate the employee.
Termination due to illness-related reasons must always be the mildest means available. That is, the principle of proportionality must be maintained. And if even just one of the three mentioned conditions is not met, the termination in case of illness is unlawful and can be challenged. Immediate Termination in Case of Illness
As you can see, one can also be terminated in case of illness. However, not because of a cold…
In principle, a termination due to illness is a termination due to personal circumstances, and the notice periods (either according to § 622 BGB or set by collective agreement / employment contract) must be observed.
However, an employee can also be terminated immediately for reasons of misconduct. For example, if an employee frequently only pretends to be ill without actually being so. As soon as the employer becomes aware of this, they may terminate the employee immediately. However, the employer must also be able to prove that they were deceived regarding the employee’s capacity for work.
