Personalgespräch trotz Krankschreibung

In practice, the question always arises as to the extent to which an employer is allowed to contact an employee during a longer period of incapacity for work due to illness and, in particular, to discuss their further employment options.

In this regard, the Federal Labor Court made clarifying statements that created greater legal certainty in its current judgment of November 2, 2016 (ref.: 10 AZR 596/15).
What was the underlying case? An employer had instructed an employee who had been unable to work for several months to appear at the company for a personnel interview to discuss further employment options. The employee refused and was therefore warned. The subject of the legal dispute was the question of whether this warning was rightly issued.
No, the Federal Labor Court decided. The employee was therefore not obliged to appear at the company for a staff interview about his further employment opportunities at the employer's instruction while he was unable to work.
However, the decision of the Federal Labor Court cannot be applied across the board to other cases. In its justification, the Federal Labor Court stated that an employee is generally not obliged to appear at the company in order to carry out his or her work or to fulfill directly related ancillary duties. This includes, among other things, participation in a personnel interview, as this is part of the employee's work obligation according to the case law of the Federal Labor Court. But the word “basically” should make you sit up and take notice. In individual cases, if it is indispensable for operational reasons and the employee is physically able to do so, the employee may also be obliged to appear at the company's personnel interview.
It should also be noted that in this case the employer had instructed the employee to come to the company to discuss his further employment opportunities. This is not mandatory. For example, an employer may also attempt to conduct such discussions by telephone or write written correspondence with the employee. The Federal Labor Court allows this to a greater extent. The Federal Labor Court states that it is not absolutely forbidden for the employer to contact a sick employee within a reasonable amount of time in order to discuss his further employment options after his recovery. The employer only needs to have a legitimate interest in this. Such a legitimate interest is likely to exist in most cases of a long-term illness, since the employer, as part of his personnel scheduling, must have at least a rough idea of when and with what content he can employ the employee again and, if necessary, how he can transfer certain tasks to others must be distributed to employees.
A principle that states that an employee can completely “go into hiding” and refuse all contact with the employer during an incapacity to work due to illness does not generally exist. Whether exceptions to this should be permitted is not clear from the reasons given so far by the Federal Labor Court. However, this is likely to be the case, for example, in the case of acute mental illnesses and a negative impact of contact from the employer. The employer must always give sufficient consideration to the employee's health situation. However, if this allows communication by telephone or in writing, there is nothing wrong with it. However, the employer will only be able to hold a personnel interview in the company itself in the presence of the employee in person in rare, exceptional cases.
Link to the BAG press release