Continued Remuneration during Sick Leave
What am I entitled to?
All employees are entitled to continued remuneration for up to six weeks (TV-L, § 22 (1), sentence 1) – from the first day of employment. It is irrelevant whether another employer has already provided any benefits for the same illness.
If a new illness occurs in addition to an existing inability to work, this does not have a prolonging effect on the period of continued remuneration (principle of the unity of the hindrance).
For example: An employee becomes unfit for work on March 1 due to a viral disease. According to the medical certificate, this illness lasts until March 28. During this inability to work, he stumbles on the stairs on March 23 and sustains a complicated torn ligament. The inability to work resulting from this accident lasts until April 25. However, he will only receive continued remuneration for the period from March 1 until April 11 (six weeks). From April 12, he receives sick pay (from his health insurance provider) and, if applicable, sick pay supplement (see below).
What happens if I’m sick for a longer period of time?
After the six weeks of continued remuneration, the employee receives sick pay from his health insurance provider. This is subject to the employee proving the continued inability to work in due time to his health insurance provider by means of a medical certificate; the deadline for this is one week.
How long will I receive sick pay?
Sick pay begins on the day after the medical declaration of inability to work or on the first day of inpatient treatment. It is paid for the duration of the inability to work, for a maximum of 78 weeks within 3 years for the same illness, which need not be consecutive. If another illness arises during the inability to work, this does not extend the duration of benefits.
In which cases do I receive a sick pay supplement?
Depending on how long you have been employed, a sick pay supplement is paid in addition to sick pay:
TV-L, § 22 (3), sentence 1, stipulates that if the employee has been employed for over a year, the sick pay supplement is granted until the end of the 13th week since the inability to work began; if you have been employed for over three years, it is granted until the end of the 39th week. However, if you have been employed for up to one year, no sick pay supplement is paid. In this case, after the six weeks have elapsed, the employee is reliant only on the sick pay of the health insurance provider.
The basis is always the duration of employment which is reached during the current inability to work. For example: If the period of employment of one year is reached during the inability to work, an entitlement to sick pay supplement is established. The employee is then treated as if he had already completed the relevant period of employment at the start of receiving sick pay.
For the calculation of the benefit periods, the beginning of the inability to work must always be considered, so that the sick pay supplement is paid for a maximum of seven or 33 weeks.
Entitlement to sick pay supplement for recurring illnesses
In the event of a recurring illness, the employee is only entitled to sick pay supplement once for up to 39 weeks.
For example:
An employee who has been employed for 13 years suffers from rheumatism. The illness is diagnosed for the first time on December 1, 2018 (beginning of the inability to work). The inability to work continues without interruption until July 26, 2019. The employee resumes work on July 27, 2019. On October 1, 2019, he becomes unable to work again due to rheumatism. The inability to work lasts until January 20, 2020. He resumes work on January 21, 2020. On May 2, 2020, he becomes unable to work again due to rheumatism.
The employer pays as follows:
From December 1, 2018, to January 11, 2019 (six weeks), remuneration is continued. From January 12, 2019, to July 26, 2019 (end of the 34th week after the beginning of the inability to work), sick pay supplement is paid.
From October 1, 2019, to November 4, 2019 (5 weeks), sick pay supplement is still paid. There was no entitlement to continued remuneration because less than six months had passed between the end of the first period of illness and the beginning of the second.
In addition, at the beginning of the renewed inability to work, a period of less than 12 months had elapsed since the beginning of the first period of illness. From November 5, 2019, until the end of this period of illness, the employee is no longer entitled to a sick pay supplement, because a total of 39 weeks sick pay supplement and continued remuneration had already been paid for this illness (34 weeks during the first period of illness and five weeks during the second).
From the beginning of the third period of illness on May 2, 2020, he is entitled to continued remuneration again (more than a year had passed since the beginning of the first illness) and, subsequently, to sick pay supplement.
Problems can arise in cases of recurrent illness in which the first six weeks of continued remuneration have already passed, so that, at the beginning of the recurring illness, the employee is only entitled to a sick pay supplement and the employee only has his illness medically diagnosed at the end of the certification period.
For example:
An employee who has been with the company for seven years is unable to work from February 1, 2020, to March 22, 2020. Due to the same illness, she is unable to work again from May 2, 2020 (Wednesday). She sees her doctor on the following Monday (May 7, 2020), and is diagnosed as unfit for work until May 26, 2020.
The employee is entitled to the following compensation from her employer:
In the period from February 1, 2020, to March 14, 2020, she is entitled to continued remuneration (six weeks). From March 15, 2020, to March 22, 2020, sick pay supplement is paid.
In the period from May 2, 2020, to May 7, 2020, she is not entitled to continued remuneration or sick pay supplement because the period of continued remuneration has already been used up by the first period of illness, but she is not entitled to sick pay due to the lack of a medical certificate, so no sick pay supplement can be paid.
She is only entitled to sick pay and sick pay supplement from May 8, 2020.
Amount of sick pay supplement
The sick pay supplement is calculated as the difference between net remuneration and gross sick pay. Exception: For employees who fell under the scope of the BAT, § 71 (**see explanatory note below) until September 30, 2005 (entitlement to continued remuneration for up to 26 weeks), the difference between net remuneration and net sick pay is paid as a sick pay supplement.
Calculation of Net Remuneration
The statutory deductions, i.e. payroll tax, church tax (if applicable), solidarity surcharge, employee contributions to pension, health, long-term care and unemployment insurance are deducted from the gross remuneration as determined pursuant to § 21 TV-L.
Calculation of Sick Pay
The amount of the sick pay is determined in accordance with §47 of the Sozialgesetzbuch (Social Welfare Code) V. The sick pay is 70% of the standard salary for each calendar day (gross earnings).
In the first step, the regular remuneration is determined without taking one-off payments into account. For employees who receive monthly remuneration, the calendar month before the inability to work is used as the basis for calculation and the remuneration is divided by 30. In the second step, the regular remuneration is increased by the 360thpart of the one-off payments made in the last 12 months before the start of the inability to work.
However, sick pay may not exceed 90% of net remuneration (§47 para. 1 sentence 2 of the Sozialgesetzbuch V). A comparative calculation is therefore made between 70% of regular remuneration and 90% of net remuneration. Sick pay is granted in the amount of the lower value.
The net remuneration is determined by the employer and reported to the health insurance provider.
The maximum amount of regular remuneration is the daily income threshold, 156.25 Euros in 2020, which corresponds to a maximum daily sick pay of 109.38 Euros.
The sick pay thus determined is the gross sick pay. The employee contributions to pension and unemployment insurance are then deducted (net sick pay).
TV-L § 22
Calculation of sick pay supplement for salaried employees
For all salaried employees who did not fall under the regulation of § 71 BAT, the difference between net remuneration and gross sick pay is paid as a sick pay supplement. This amounts to 93 % of the net remuneration.
TVÜ-L § 13
Calculation of the sick pay supplement for employees who fell under the transitional regulation of § 71 BAT
** All employees who were in an employment relationship with the same employer within the scope of the BAT on June 30, 1994 and on the following day, July 1, 1994, were covered by this provision.
The difference between net remuneration and net sick pay is paid as a sick pay supplement. This amounts to 100% of the net remuneration.
Please note for both calculations:
The calculation of the sick pay supplement is based on a calendar day. However, while statutory sick pay is always calculated as a flat rate on the basis of 30 calendar days, remuneration minus deductions (net remuneration) is calculated on the basis of the actual number of calendar days in the respective month.
In the 4th / 5th week, when it is foreseeable how long you will remain on sick leave beyond the 6th week, your health insurance provider will contact your employer so as to calculate your sick pay.
You must send this calculation from your health insurance provider stating your sick pay per calendar day to the State Office for Salaries and Pensions (LBV). This allows your administrator to see how much sick pay supplement you are entitled to, which will be transferred to your salary account.
You can request your sick pay supplement informally in addition to sending in your health insurance letter, but this isn’t strictly necessary.
(The article has been slightly modified and published by courtesy of the staff council oft he LMU)
Updated: 10/2020