The question of whether an employer is also obliged to pay a salary during a leave of absence or in the event of a certificate of incapacity for work is a regular issue for companies. A groundbreaking ruling by the Higher Labor Court of Lower Saxony (case no.: 6 Sa 416/23) brings new clarity to this legal grey area. The combination of the examination of the probative value of certificates of incapacity for work and the consequences of unclear decisions on leave of absence is particularly exciting. What does this ruling mean for companies and how can employers handle such situations with legal certainty? In the following, you will find out what is important when it comes to continued payment of remuneration during leave of absence and what pitfalls to avoid.

Starting point of the legal dispute at the Lower Saxony Higher Labor Court: Employer questions the probative value of certificates of incapacity for work

The case on which the judgment of the Higher Labor Court of Lower Saxony was based revolved around the remuneration claims of a part-time commercial employee. Following a leave of absence and the submission of several certificates of incapacity for work, the employer refused to pay the salary for the month of December in question. The plaintiff claimed that she was entitled to remuneration despite her leave of absence, as the employer had been in default of acceptance. She also argued that her inability to work had been correctly documented. The employer, on the other hand, questioned the evidential value of the certificates of incapacity for work and argued that the leave of absence did not entail an obligation to pay salary.

The legal basis for continued payment of remuneration in the event of leave of absence and default of acceptance

The employer’s obligation to pay salary depends largely on the legal classification of the leave of absence and the conduct of the parties. According to § Section 611a (2) BGB the employer owes remuneration for work actually performed. At the same time, Section 615 BGB stipulates that the employer may also be obliged to pay if it is in default of acceptance. Default of acceptance occurs if the employee offers to perform work but the employer does not accept it. In special cases, such as an invalid termination, an offer of work may not be necessary.

In addition, the Continued Remuneration Act (EFZG) applies in the event of illness. According to Section 3 EFZG, employees are entitled to salary payments for up to six weeks, provided they can provide proper proof of their incapacity to work. The certificate of incapacity for work has a high evidential value, which the employer can, however, challenge under certain circumstances.

Default of acceptance occurs if the employer does not accept the work offered by the employee, even though the employee is willing and able to perform the work. In cases where the employer expressly declares that it will not accept the work, an offer by the employee may not be necessary. In this case, the WhatsApp message from the managing director was sufficient to trigger the default of acceptance.

Employers should be aware that a leave of absence must be carefully formulated and documented. Unclear or verbal statements can have legally binding consequences. A precise written leave of absence that clearly defines the period and conditions is crucial to avoid misunderstandings.

LAG Lower Saxony: Certificates of incapacity for work did not meet the requirements to justify entitlement to continued payment of remuneration

The court ruled that the plaintiff was entitled to remuneration for part of the month of December. This was based on a de facto leave of absence by the employer. A WhatsApp message in which the managing director stated that the plaintiff should “not come in this week” was deemed to be a leave of absence. As a result, the employer was in default of acceptance pursuant to Section 615 BGB. As the claimant did not have to offer her work under these circumstances, the employer was obliged to pay the remuneration for this period.

However, the court dismissed the claim for the remaining month. The certificates of incapacity for work submitted did not meet the requirements to justify the entitlement to continued payment of remuneration. The court found that some certificates were issued without a personal examination, which is a violation of the Incapacity for Work Directive (AURL). This directive stipulates that a certificate of incapacity for work may only be issued following a personal examination or as part of a permitted video consultation. As the certificates did not meet these requirements, their probative value was undermined.

What are the consequences for continued payment of remuneration in the event of leave of absence?

The ruling by the Lower Saxony Higher Labor Court shows how important clear communication and compliance with formal requirements are. An ill-considered statement such as the managing director’s WhatsApp message can be legally interpreted as an exemption. Companies should be aware that such statements can quickly put them in default of acceptance, which leads to an obligation to pay, even if the work has not been performed.

At the same time, the case illustrates the requirements for a proper certificate of incapacity for work. Employers may critically scrutinize such certificates if they do not meet the requirements of the incapacity for work directive. The court has made it clear that certificates that are based purely on telephone information or cover unreasonably long periods of time may lose their evidential value.

How employers can check the probative value of certificates of incapacity for work

Employers have the right to question the probative value of a certificate of incapacity for work if specific circumstances cast doubt on its accuracy. Breaches of the incapacity for work directive, such as the lack of a personal examination, are particularly relevant in this respect. An unreasonably long certificate without medical justification can also undermine the probative value.

The court emphasized that employees must provide additional evidence to prove their inability to work if the value of the evidence is shaken. General statements are not sufficient. It is the employee’s responsibility to present specific symptoms and their impact on their ability to work.

Lessons for employers from this ruling: Do not simply accept certificates of incapacity for work

The ruling of the Lower Saxony Higher Labor Court underlines the importance of clear and legally compliant communication in the employment relationship. Employers should always proceed carefully when granting leave of absence and reporting sickness. A careless statement, just like an incorrect certificate, can have considerable legal consequences. Companies should review their internal processes and ensure that managers are aware of the legal framework.

The issue of continued payment of remuneration during leave of absence remains complex and requires a sound legal assessment. Employers who find themselves in similar situations should seek legal advice at an early stage in order to avoid disputes.

* This refers to persons of all gender identities. Other spellings are only omitted for reasons of readability.