I have caught a flu virus and have a severe cold. The family doctor has written me 100% unfit for work for three days. However, after talking to the boss, I have the feeling that I can't afford to be sick at all.
The boss is putting a lot of pressure on me. He expects me to work in the office or at least in the home office despite the flu. He holds out the prospect of an attendance bonus if I don't have any absences.
That's not what I'm concerned about. Rather, I'm afraid of losing my job if I don't comply with my boss's request. But at the same time, I really don't feel fit for work. What should I do?
Herbert F.
If Herbert's family doctor determines that he is 100% incapacitated for work, then his employer must accept this. He cannot require Herbert to work. Not even at a reduced workload. He could only do this if Herbert were not 100% incapacitated for work but, for example, 50% incapacitated.
Doctor's Certificate Documents Inability to Work
Herbert is strongly advised to really take the three days off. Otherwise, he risks prolonging his illness. This serves neither him nor the employer.
In order to document his inability to work for the employer, Herbert should submit an appropriate doctor's certificate to him. The employer may demand a doctor's certificate from the first day of illness, even if the employment contract does not expressly require this. Most employers want a doctor's certificate to be submitted if the incapacity for health reasons lasts more than two, three or four days.
The Employer Must Exercise His Duty of Care
Herbert's employer has a duty of care towards him. Based on this statutory duty, he must protect Herbert's health. He must also ensure that Herbert's colleagues are not infected with the flu virus.
In Herbert's case, it is therefore very clear that the boss must urge his employee to stay away from work.
Sick is Sick – even in the Home Office
Herbert's employer could now come up with the idea of making home office palatable to him. Then Herbert would not have to commute and could lie down for a while. And he wouldn't be able to infect his colleagues.
However, Herbert's employer would still be in breach of his duty of care. Because Herbert is just as sick in the home office as he is at work. The home office is a workplace and the same rules apply as at work.
Attendance Bonuses Are Wrong Incentive
Incidentally, attendance bonuses are problematic from a legal perspective because they create an incentive to work despite illness. This is incompatible with the employer's duty of care.
Similarly, employees should not have to fear for their jobs if they are absent due to flu. Illness is clearly not grounds for dismissal.
In the case of prolonged illness, however, the employer may terminate the employment contract after expiration of the relevant periods. These periods last 30 days in the first year of service, 90 days from the second to the fifth, and 180 days from the sixth year of service.
If such a work culture prevails in Herbert's company, he would be better off looking for another employer in the long run.
