Continued payment of wages in the event of illness for various illnesses? BAG confirms the principle of unity in the event of prevention

According to Section 3 Paragraph 1 Sentence 1 EFZG, an employee is entitled to continued payment of wages in the event of illness for a period of six weeks if they become unable to work through no fault of their own. Sometimes employees try to get their employer to continue paying their wages after six weeks with a new initial certificate. The Federal Labor Court has once again confirmed an effective but little-known antidote for employers with its current ruling of November 11, 2019 (ref.: 5 AZR 505/18): the so-called principle of unity of prevention.
The objection of so-called continuation of illness is widely known as a possible counterargument for employers in these cases. If an employee continues to fall ill beyond the statutory wage payment period of six weeks, but claims that it is a new illness, the employer is not necessarily obliged to continue paying wages. In principle, there is no entitlement to continued payment of wages if the employee becomes unable to work again as a result of “the same illness” (Section 3 Paragraph 1 Sentence 2 EFZG). “The same disease” is not just the identical disease, but is also understood by jurisprudence in a broader sense. It is sufficient if a repeated illness is based on the same “underlying condition”. The symptoms of the disease do not necessarily have to be identical. It is also irrelevant whether the treating doctor has issued a new “initial certificate”. As long as a uniform “underlying condition” can be identified between the various illnesses, the employer is not obliged to continue paying wages beyond six weeks. Any information provided by the health insurance company in this regard has no binding effect. Rather, by releasing the treating doctor from his duty of confidentiality in labor court proceedings, the employee must generally provide evidence that there was no ongoing illness. However, if this remains open, the employer bears the consequences of this fact not being proven. He therefore bears the so-called objective burden of proof.
The objection of the unity of the prevention case is therefore sometimes more promising. However, this is often not even considered by employers.
What does the unity of prevention objection mean?
According to the BAG's consistent case law, the legal right to continued payment of wages due to incapacity to work is limited to a period of six weeks even if: while an existing incapacity for work a new one, on one others An underlying illness occurs, which also leads to incapacity to work. A new entitlement to continued payment of wages only arises if the first absence from work due to illness has already occurred completed was to which further illness led to incapacity to work. The BAG has once again confirmed this - less well-known - so-called principle of the unity of the prevention case in its current judgment of November 11, 2019.
In particular, if a 6-week illness is seamlessly followed by a new illness with a corresponding “initial certificate”, it is obvious that the (supposed) new illness already occurred during the previous 6-week illness. In addition to defending with the (also obvious) argument that both illnesses are based on a common underlying disease, it is therefore useful to also argue that the second illness occurred at least during the duration of the first.
This has another advantage. With regard to the objection of unity of the prevention case, the employee bears the objective burden of proof. If it cannot be clarified whether the second illness occurred during the first, this will be at the employee's expense. There is then no further entitlement to continued payment of wages. The legal situation is therefore more favorable for the employer in one important respect.
Conclusion:
Even if employers are confronted with a new "initial certificate" after six weeks of an employee's illness, one should not bury one's head in the sand too quickly. It may be worthwhile to take a closer look at the exact circumstances of your continued inability to work. Under certain circumstances, there may be valid indications that there is no entitlement to continued payment of wages for the continued illness. This is the case not only in the case of a continuation of the disease, but also in the case of the prevention case.