Delayed sick leave after hospitalization

Whether an employee who has been discharged from the hospital and remains unable to work loses the right to sick pay simply because his or her primary care physician cannot promptly write out a required sick note due to inconvenient office hours is the subject of a court ruling.

In order not to lose the entitlement to payment of sick pay by a statutory health insurance fund following a stay in hospital, it is sufficient if a hospital doctor has first certified the continued incapacity for work. This was decided by the Social Court in Leipzig (Az.: S 22 KR 75/16).

A woman had been discharged from the hospital on a Friday after inpatient treatment for several serious injuries. The attending clinician certified that she would probably be unable to work for the next five months. He dismissed her with the requirement to present to her primary care physician as soon as possible.

Inconvenient office hours

However, due to the inconvenient office hours of the family doctor, she did not receive an appointment there until the following Tuesday. In this case, her continued inability to work was certified retroactively from the day she was discharged from the hospital.

However, the woman’s request to continue paying her sick pay was rejected by her statutory health insurance company. Justification: The entitlement to sick pay is regulated in section 46 sentence 2 SGB V (Fifth Social Code). A claim for sick pay only exists until the day on which the further incapacity for work due to the same illness is medically determined – and if this determination is made at the latest on the next working day after the last certified end of the incapacity for work.

The determination of the continued incapacity for work of the affected person by her family doctor, however, had not taken place on the next working day after discharge from the hospital, i.e. on Monday, but only on Tuesday. Even the retroactive sick leave by the family doctor does not change anything. Because of the late determination by the family doctor, the entitlement to sick pay has also expired for the 74 weeks that still follow.

No special form required

The woman appealed against the rejection in court. The Leipzig Social Court did not agree with the health insurance company’s reasoning. It upheld the lawsuit filed by the statutorily insured for continuous payment of sick leave benefits. According to the court, in cases of indisputable incapacity of an insured person to work, only a medical statement is required, without the need for any special form.

In the plaintiff’s case, it was therefore irrelevant that the clinic doctor, who was not licensed by the health insurance fund, did not certify her inability to work in the form of a “sick bill”.

Nor was it critical to the claim for sick pay that the plaintiff could not present herself there the very next business day, as required by law, because of scheduling difficulties at her primary care physician’s office. The determination of the plaintiff’s incapacity for work made by the clinic doctor continues to have an effect.

Loss of income in case of illness

In principle, employees who are unable to work due to an illness or accident are entitled under the Continuation of Remuneration Act (EntgFG) to have their wages paid to them by their employer for six weeks or 42 calendar days. If an employee with statutory health insurance is ill for more than six weeks within a year due to the same illness, he or she receives sick pay from his or her health insurance fund for a maximum of 78 weeks from the start of the incapacity for work.

If the incapacity to work occurs several times due to the same illness that has not been cured, the sickness benefit is paid for a maximum of 78 weeks within three years. Sick pay is lower than your previous salary. You will be paid 70 percent of your gross salary, but no more than 90 percent of your net income. For the amount of sick pay, the maximum income up to the contribution assessment limit (monthly 4.350 euros in 2017) will be taken into account. Salary above this limit is not included in the calculation of sickness benefit.

People with statutory health insurance must therefore reckon with a loss of income in the event of longer periods of illness, i.e. after the six-week period of continued payment of wages by the employer. This is because the statutory sick pay paid by the health insurance fund as a wage replacement benefit is less than the previous net salary. Especially those who have a high salary must expect a considerable loss of income, which can be prevented with a private daily sickness benefit insurance.