Sick and cancelled - your rights in the event of continued payment of wages

You are on sick leave and have been given notice of dismissal — or you fall ill after you have already been dismissed. Both situations raise questions: Does the employer have to continue paying your wages? Can you even be dismissed whilst on sick leave? This guide clarifies the key points.

Can an employer dismiss you whilst you are on sick leave?

Yes. It is a common misconception that being on sick leave protects you from dismissal. A certificate of incapacity for work (AU) prevents neither ordinary nor extraordinary dismissal. Your employer can terminate your employment even if you are on sick leave — provided the general conditions for dismissal are met.

Conversely, dismissal on grounds of illness is also possible under certain circumstances. However, these are two distinct issues that should not be confused.

Continued payment of wages in the event of illness — the basic rule

Under the Continued Remuneration Act (EFZG), an employee is entitled to continued payment of wages for up to six weeks (42 calendar days) in the event of incapacity for work. This entitlement also applies during the notice period and only ends with the termination of the employment relationship or after the six weeks have elapsed.

When can the evidential value of the sick note be challenged?

In principle, a doctor’s sick note carries significant evidential weight. The employer must continue to pay wages initially. However, the Federal Labour Court has clarified in several rulings that the evidential value can be challenged under certain circumstances.

Critical scenarios:

• The sick note is issued on the day the employee resigns and covers exactly the remaining notice period.
• The employee resigns and is on sick leave from the following day until their last day of work.
• There are other circumstances that give rise to doubts about the illness — such as a simultaneous announcement that the employee will no longer be coming to work.

In such cases, the employee must prove their actual incapacity for work by other means — for example, through medical statements or by releasing the doctor from their duty of confidentiality.

Important: The situation is different in the case of dismissal by the employer. If an employee is on sick leave after receiving a notice of dismissal from their employer, the evidential value of the sick note is not generally called into question for that reason alone.

What happens after the employment relationship ends?

If the employment relationship ends whilst the employee is unable to work, the employer’s continued payment of wages also ceases. From this point onwards, statutory health insurance takes over and pays sickness benefit — provided the incapacity to work continues.

Sick pay is usually 70% of gross income, but no more than 90% of net income. It is paid for a maximum of 78 weeks (minus the 6 weeks of continued pay).

Deadlines and obligations for employees

If there is a gap in the sick note, your entitlement to continued pay may be at risk. Ensure that follow-up certificates follow on seamlessly.

Falling ill whilst on holiday during the notice period

If you fall ill during a holiday that has already been approved, the sick days will not be deducted from your holiday entitlement provided a sick note is submitted in good time (Section 9 of the German Annual Leave Act). You will then still be entitled to these holiday days — or they must be compensated financially upon termination of the employment relationship.

Frequently Asked Questions (FAQ)

Can I be dismissed whilst on sick leave?

Yes. A sick note does not protect you from dismissal. The employer may terminate your contract either with or without notice — regardless of any existing incapacity for work.

Does my employer have to continue paying my salary during the notice period if I am ill?

In principle, yes. Continued pay in the event of illness applies for up to six weeks — including during the notice period. After that, the health insurance fund takes over.

Can my employer refuse to continue paying my wages?

Only if they successfully cast doubt on the validity of the sick note — for example, if the sick note suspiciously coincides with your resignation. In this case, you must provide alternative proof of your actual illness.

What happens if my employment ends whilst I am ill?

From the end of your employment, you will receive sick pay from your health insurance provider, provided your incapacity for work continues.

Do I have to register as a jobseeker even though I am on sick leave?

Yes. The obligation to register as a jobseeker applies regardless of whether you are on sick leave. If you miss the deadline, you risk a one-week suspension of your unemployment benefit.

Can I attend a job interview whilst on sick leave?

In principle, yes — being on sick leave does not mean house arrest. You are permitted to do anything that does not jeopardise your recovery. Attending a job interview is generally not a problem.

This article is for general information purposes only and does not replace individual legal advice. Every case is different — if you have specific questions, we recommend seeking legal advice at an early stage.