Is there a new illness or a continuation of illness? The Federal Labor Court (BAG) has ruled that employees who assert a new claim to continued payment of wages in the event of illness after six weeks of illness must disclose their previous illnesses. Find out more about the ruling and use our sample letter to ask your employee to disclose their medical history and release their doctor from the duty of confidentiality.
Employee rejects comprehensive disclosure of pre-existing conditions
The BAG decision (5 AZR 93/22) was based on the following facts: The plaintiff worked for the defendant in baggage handling. In the period from 2019 to 2020, he was repeatedly unable to work due to illness. He claimed continued remuneration for ten working days between August 18, 2020 and September 23, 2020. The defendant refused payment with reference to a continued illness. The plaintiff submitted certificates of incapacity for work with diagnosis codes, but refused to disclose the previous illnesses in full for data protection reasons. The Regional Labor Court dismissed the claim, which was confirmed by the Federal Labor Court.
"Rights of the repeatedly ill employee restricted"
In its decision of January 18, 2023, the BAG primarily dealt with the requirements for an employee's burden of proof in a dispute regarding continued sickness pursuant to Section 3 (1) of the Continued Remuneration Act (EFZG).
§ Section 3 para. 1 sentence 1 EFZG grants employees the right to continued payment of remuneration in the event of illness for up to six weeks. If an employee becomes unfit for work again as a result of the same illness, he or she does not lose the entitlement to continued payment of remuneration for a further period of up to six weeks due to the renewed incapacity for work in accordance with Section 3 (1) sentence 2 EFZG only if he or she
- was not unfit for work for at least six months prior to the renewed incapacity for work as a result of the same illness (no. 1) or
- a period of twelve months has elapsed since the start of the first incapacity for work due to the same illness (No. 2).
A new entitlement to continued payment of remuneration for a period of six weeks therefore only arises before the expiry of these periods if the incapacity for work is due to another illness.
The regulation is intended to protect the employee from economic hardship, but limits the burden on the employer through a clearly defined reasonableness limit. "These regulations are intended to limit the economic burden placed on employers by the obligation to continue to pay remuneration. It is a restriction of the rights of the repeatedly ill employee, which is based on a special reasonableness regulation of the legislator", explains the BAG in its ruling.
Graduated burden of proof after six weeks
The BAG clarifies that employees have a graduated burden of proof. This includes:
- First lectureFirst of all, the employee must demonstrate that there is no continuing illness, unless the certificate of incapacity for work contains information to this effect. The employee can submit a medical certificate for this purpose.
- Extended lectureIf the employer denies the existence of a new illness, it is up to the employee to provide further details. These should provide evidence that there is no continuing illness. "The employee must describe, in layman's terms, which health impairments and complaints existed with which effects on their ability to work and release the doctors treating them from their duty of confidentiality", according to the BAG. Only on the basis of this presentation is it possible for the employer to make a substantiated factual presentation.
According to the BAG, a mere reference to diagnosis codes (ICD-10) is not sufficient, as a continuation of an illness can exist even if the symptoms are described differently if they are attributable to the same underlying condition.
Reading tip: ECJ interprets "legitimate interest" in accordance with Art. 6 para. 1 lit. f GDPR
Data protection balancing
The plaintiff argued that the disclosure of his health data violated his fundamental right to informational self-determination (Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG). However, the BAG considered the interference to be proportionate, as:
- The intervention serves a legitimate purpose, namely the materially correct decision in the process.
- There are no equally effective alternatives that are less detrimental to data protection.
- The disclosure of the data safeguards both the employer's right to be heard and the duty to ensure justice.
The BAG also confirmed the permissibility of the processing of health data in accordance with Art. 9 para. 2 lit- f GDPR, as it is necessary for the enforcement of legal claims. The processing takes place in the context of legal proceedings and is subject to strict proportionality and data protection requirements.
Consequences for practice
Employer side
Employers can demand detailed disclosure of health data if there are doubts about continued illness. This strengthens their position when defending against unjustified claims for continued payment of remuneration.
Employee side
Employees should be aware that they have a comprehensive burden of proof in the event of long-term or repeated illnesses. This includes not only the submission of diagnosis codes, but also a lay description of the health impairments and the release of the treating doctor from the duty of confidentiality.
The ruling confirms that the graduated burden of proof is constitutional and strengthens the principle of the right to be heard and procedural parity. At the same time, there are clear limits to data protection if the disclosure of health data is necessary to safeguard substantive rights.
Source: Judgment 5 AZR 93/22 of the Federal Labor Court of January 18, 2023
Sample letter for employers on the extended presentation
Use our sample letter if you as an employer require an extended presentation from your employee.
Subject: Request for disclosure of medical history and release of the doctor from the duty of confidentiality
Dear Mr. [name of employee],
We refer to your repeated reports of illness and the associated uncertainties regarding the legal classification of these illnesses. It is not clear to us whether the individual cases of illness are to be regarded as continuing illnesses or whether they are new illnesses.
In accordance with the case law of the Federal Labor Court and based on the decision that you can find at 5 AZR 93/22 - The Federal Labor Court In such cases, it is necessary for the employee to contribute to clarification. In particular, this concerns the disclosure of whether and to what extent there is a continuing illness.
In order to carry out this assessment, we ask you to release your attending physician from the duty of confidentiality and to disclose the relevant medical documents required for the assessment. These documents are necessary to ensure that the continued payment of remuneration is handled correctly and that you or the company are not disadvantaged.
Please send us written confirmation that you agree to your doctor's release from the duty of confidentiality by [insert deadline date] at the latest. At the same time, please send us the necessary documents for further clarification.
We would like to emphasize that this is a measure that serves exclusively to clarify your claims and the correct application of legal regulations. If you have any questions or require assistance, we are of course at your disposal.
Yours sincerely,
English 
German 
Italian 
French