When is an employer obliged to pay, and when can they refuse? We examine the nuances of German labour law.

Yes, an employer is obliged to continue paying wages after dismissal if the employee is on sick leave – but only until the end of the employment relationship and subject to certain conditions.

According to § 3 of the Wage Continuation Act (EFZG), during the first six weeks of illness, the employee is entitled to full sick pay from the employer, including during the notice period. This rule applies regardless of who initiated the dismissal – the employer or the employee – provided that a medical certificate (Arbeitsunfähigkeitsbescheinigung, AU) is available, which serves as primary evidence of incapacity for work. After six weeks or after the end of the employment relationship, the health insurance fund takes over the payments in the form of sickness benefit.

The employer may refuse to pay wages if there are specific grounds for suspecting that the illness is being feigned. A classic example is the so-called ‘farewell illnesses’ (Abschlusskrankheiten), when an employee is ill until the last working day and starts a new job immediately after the end of the employment relationship.

In such cases, the employee must prove their incapacity for work in court. The Federal Labour Court (BAG) confirmed this practice in its ruling on case Az. 5 AZR 149/21.

It is important to note that mere suspicion is not enough – the burden of proof still lies with the employer, who must provide compelling reasons for their doubts about the authenticity of the certificate.

Once the term of employment has expired due to dismissal, the employer is not obliged to pay wages, even if the illness continues. From that moment on, the health insurance fund is responsible for payments. In the event of dismissal due to illness (so-called Anlasskündigung – dismissal for a specific reason), the right to salary may be retained even after the expiry of the term of the employment contract specified in the dismissal, if such dismissal is declared invalid by a labour court.

Practical recommendations for employees:

• Submit a doctor’s certificate of incapacity for work in a timely manner
• If payment is refused, file a claim for salary recovery with the labour court
• Carefully keep all documents confirming illness and incapacity for work

The preservation of salary during the notice period is the rule, not the exception. Only if there is reasonable suspicion of malingering can the employer refuse to pay, but in doing so, they assume the risk of legal proceedings in a labour court.