A dismissal while you are on sick leave is legally possible, but it does not by itself change your entitlement to continued pay. The same is true the other way round, if you fall ill only after the dismissal reaches you. This guide explains who pays in which situation, which deadlines apply, and when the employer can refuse to pay.
May the employer give notice during sick leave?
Yes. The assumption that sick leave protects against dismissal is a common misconception. A certificate of incapacity for work does not prevent either an ordinary or an extraordinary dismissal. The employer can end the employment relationship even during sick leave, provided the general requirements for a dismissal are met.
This must be distinguished from a dismissal because of illness. That, too, is possible under certain circumstances, but it follows its own rules and should not be confused with a dismissal during sick leave.
Continued pay after dismissal during illness: the basic rule
Under the Continued Remuneration Act (EFZG), an employee who is unfit for work is entitled to continued pay for up to six weeks (42 calendar days). This entitlement also applies during the notice period. It ends when the six weeks are up or when the employment relationship ends.
| Situation | Entitlement to continued pay |
|---|---|
| Sick leave before dismissal by the employer | Yes, up to 6 weeks or until the employment ends |
| Sick leave after dismissal by the employer | Yes, if the illness actually exists |
| Sick leave after resigning yourself | Yes, but the evidential value of the sick note can be undermined |
| Employment ends during illness | After that the health insurance fund pays (sickness benefit) |
When can the evidential value of the sick note be undermined?
A doctor’s certificate of incapacity for work generally carries a high evidential value, so the employer must initially keep paying. However, the Federal Labour Court has clarified in several rulings that this evidential value can be undermined under certain circumstances.
Doubts arise above all in these situations:
- The sick note is issued on the day of the employee’s own resignation and covers exactly the remaining notice period.
- The employee resigns and is on sick leave from the next day until the last working day.
- Further circumstances raise doubts about the illness, for example announcing at the same time that they will no longer come to work.
In these cases the employee has to prove their incapacity for work by other means. This is possible, for example, through statements from the treating doctor or by releasing the doctor from the duty of confidentiality.
Important: after a dismissal by the employer, the situation is different. If an employee only goes on sick leave after receiving the employer’s dismissal, the evidential value of the sick note is generally not doubted for that reason alone.
Sickness benefit: who pays after the employment ends?
If the employment relationship ends during incapacity for work, the employer’s continued pay ends too. From that point the statutory health insurance fund pays sickness benefit, provided the incapacity for work continues.
Sickness benefit is generally 70 % of gross income, but no more than 90 % of net income. It is paid for a maximum of 78 weeks, less the six weeks of continued pay.
Deadlines and duties for employees
| Duty | Deadline |
|---|---|
| Inform the employer of incapacity for work | Immediately, on the first day of illness |
| Submit the sick note to the employer | By the fourth calendar day at the latest, or earlier if agreed in the contract |
| Follow up sick note for continuing illness | Seamlessly, without a gap |
| Register as seeking work after dismissal | 3 months before the end of the contract or within 3 days of learning of it |
A gap in sick leave can jeopardise the entitlement to continued pay. Follow up certificates must therefore connect seamlessly to the previous one.
Falling ill on holiday during the notice period
If you fall ill during holiday that has already been approved, the days of illness are not counted against the holiday if you submit a sick note in time (§ 9 BUrlG). You remain entitled to those holiday days. If the employment relationship ends, they must be compensated financially.
Frequently asked questions about sick leave and dismissal
Can I be dismissed while I am on sick leave?
Yes. Sick leave does not protect you against dismissal. The employer can give notice both ordinarily and extraordinarily, regardless of any existing incapacity for work.
Does the employer have to keep paying during the notice period if I am ill?
In principle yes. Continued pay in case of illness applies for up to six weeks, including during the notice period. After that your health insurance fund takes over.
Can my employer refuse continued pay?
Only if it successfully undermines the evidential value of the sick note, for example because the sick leave coincides suspiciously in time with your own resignation. In that case you have to prove your actual illness by other means.
What happens if my employment ends while I am ill?
From the end of the employment relationship you receive sickness benefit from your health insurance fund, provided your incapacity for work continues.
Do I have to register as seeking work even though I am on sick leave?
Yes. The duty to register as seeking work applies regardless of sick leave. If you miss the deadline, a one week suspension period on unemployment benefit is possible.
May I attend a job interview while on sick leave?
In principle yes. Sick leave does not mean house arrest. Anything that does not endanger your recovery is allowed. Attending a job interview is usually unproblematic.
This article provides general information and does not replace individual legal advice. Every case is different. For specific questions, we recommend seeking legal support at an early stage.
