Employment despite incapacity for work
The cases are increasingly occurring in which an employee, who is still still incapable of working, suddenly wants to work because he suddenly wants to work because he z. B. wants to start his old vacation after his supposed recovery.
Then there is mostly perplexed on the employer's side.
As a first reaction, most employers would certainly say: "Working? No! You are still on sick leave, I must not let you work!
But is that true? On closer inspection, it is not that easy and as is so often dependent on the individual case.
General
If the employee is unable to work, he does not have to work. However, if he is able to work back to the employer before the end of the end of the end time stipulated in the incapacity certificate, he is obliged to register and offer his work or to resume his work.
Contrary to the popular opinion, the work incapacity certificate for a longer period of time does not conflict with the work recording.
Evaluation value of the disability certificate
With a certificate of incapacity for work, the employee can prove his incapacity to work. It is a certificate with which the doctor certifies the incapacity to work and its expected duration. However, it usually only reflects the doctor's presumption with regard to the duration of the recovery process. The employee himself can invalidate the evaluation value of the incapacity for work by offering his working management. This ineffective the certificate of incapacity for work. He does not need a confirmation from the doctor to restore the ability to work. There is no "medical health description", "work capacity certificate" or the like.
Employer -related duty of care
However, the employer makes a duty of care. It is required to consider the rights, legal goods and interests of his employees. He should therefore not accept the work performance offered by an obviously incapable employee. By taking up work, the diseased employee may endanger his recovery process, the disease can worsen or there is an increased risk of work. In addition, the employer must also protect the interests of his other employees and the third parties working by temporary agency workers or in the company. B. if there is a risk of infection.
Remuneration claim
But what about the employee's claim for remuneration? He considers himself to be recovered and offers his workforce. However, he is sent away by the employer because he considers him unable to work and does not want to take any risk.
This is not relevant for times when there is still entitlement to continued payment, i.e. usually in the first six weeks of incapacity to work, since the employer still pays anyway. The question is important in cases where the continued payment period ended.
A distinction must be made between objective incapacity to work and objective work ability.
Objective incapacity to work
In the event of objective incapacity to work, there could be a claim for remuneration from the employer's default of acceptance. The employer is default of acceptance if the employee offers the contractually owed service in the right place, at the right time and in the right way and the employee is efficient (i.e. capable of work here).
If the employee is unable to work and therefore not efficient, the employer is not in default of acceptance.
The objectively available circumstances are decisive. If the employee is objectively unable to resume the work at the time of the rejection of the employer, the lack of performance cannot be replaced solely by the subjective assessment of the employee that he is again able to work.
If the employee relies on being able to work even according to objective standards, the employer bears the burden of proof and proof of the employee's incapacity to work.
In addition, it is sufficient for him to refer to evidence that indicate incapacity to work. So he can z. B. appointed to an still ongoing incapacity certificate. Once the employer has rely on such evidence, the employee must shake the indication effect (e.g. childbirth from his doctor from the duty of confidentiality so that he confirms the ability to work).
In exceptional cases, the employer can be unreasonable to employ the employee, which can also rule out a default of acceptance and as a result of a remuneration obligation. This can be the case if the employee's employment would lead to a massive risk to the employer's legal goods or third parties, the protection of which is primarily to be treated against the interests of the remuneration from the interests of the employee.
So if third parties are seriously endangered by the employment of the employee without being able to influence and reduce this hazard by the employer through suitable preventive and protective measures, the employer is unreasonable for the employer. In any case, this applies if the employee cannot influence the danger he has from.
Objective work skills
In the event of objective work ability, the matter is different. Here, the employer is generally default of acceptance if he rejects the job offer of the employee's job offer. This is even the case when there have been doubts about the ability to work and it could only be cleared out later.
Tip
So the employer is in the clamp. Usually he will not be able to recognize whether the employee is objectively unable to work or not. It is also not legally possible for him to request a medical declaration of his recovery from the employee. In the event of objective work ability, it is therefore always exposed to the risk of acceptance of acceptance, unless he accepts the work of the employee.
They only get out of this clamp if they stay attentive. Take a closer look at the employee and look at the accompanying circumstances of the case (e.g. the incapacity for work would almost end anyway, you know that an infectious disease was the cause, etc.). If in doubt, you should rather bear the economic risk of a remuneration payment than that of the endangerment of the employee concerned himself or third parties.
