Employees should not have to disclose disease diagnoses
Stuttgart (jur). Employees and their doctors should no longer have to disclose the diagnosis of the disease in a dispute over continued payment. According to a judgment published on Friday, July 8, 2016, by the Baden-Württemberg State Labor Court (LAG) in Stuttgart, employers must trust the health insurers' assessment that an incapacity to work is based on an initial illness that obliges the employer to continue paying wages (Az .: 4 Sa 70/15). The LAG thus contradicted the case law of the Federal Labor Court (BAG) in Erfurt, according to which employees may be forced to exempt their doctors from the obligation to maintain confidentiality.
The applicant was employed as a group leader. From September 22, 2014 to March 3, 2015, she was ill for a total of 65 days - significantly more than every other working day. For this she submitted 14 medical certificates. Most of these were so-called first certificates, i.e. certificates of a new illness. Only recently, for the period from February 5 to March 3, 2015, did she submit five subsequent certificates for the same illness after the initial certification.
When the woman was again ill from March 19 to April 17, 2015, the employer refused to continue paying the wages. It can be assumed that it is a continuation disease and that the six-week wage continuation entitlement for the underlying illness has already been fulfilled.
Continued illness is an inability to work based on the same basic illness. It does not matter whether the underlying condition manifests itself again in its original or in new symptoms. If such a continuation disease occurs after less than six months, both or more incapacity for work are combined and the continued payment of wages is limited to a total of six weeks.
However, the employer copy of an incapacity certificate does not contain any information about the diagnosis. The health insurance provider receives this information. Upon request, she informed the employer here that there were no previous illnesses that could be counted for the incapacity to work as of March 19, 2015.
However, the employer refused to continue paying the salary. The doctors would not have examined the woman properly or mistakenly misjudged that it was a continuation disease. Therefore, the group leader had to disclose the diagnoses of her disability certificates so that he could check this.
The group leader relieved her doctors of some of their confidentiality, so that they could certify that the new illness was not due to any of the previous underlying conditions. However, the employer did not receive the specific diagnoses.
Like the Labor Court in Reutlingen, the LAG Stuttgart now decided that it is still obliged to continue paying wages.
Both courts thus opposed the BAG's case law. In 2005, this had given up his previously also employee-friendly case law. According to the new ruling, however, the employee must exempt his doctors from confidentiality if he wants to save his further entitlement to continued payment after six weeks of illness (judgment of July 13, 2005, ref .: 5 AZR 389/04).
The LAG Stuttgart considers this to be contradictory. It therefore wants to end this case law and return to the earlier worker-friendly case law.
As justification, the Stuttgart judges referred to cases in which the health insurance company paid sickness benefit. If there was still a right to continued payment, this claim will be transferred to the health insurance. However, the health insurance company may not report the diagnoses because they are subject to social data protection.
In order to avoid unequal treatment, workers should also be able to rely on social data protection themselves, the LAG argued. It was not clear that employers could force their employees to disclose data "that the health insurance company should not have disclosed".
Similar to the probative value of a certificate of incapacity for work, the employee must therefore be able to withhold the diagnoses at least "until the employer presents facts that give reason to doubt the correctness of the notification from the health insurance company". In the specific case, the employer did not do this.
Because of its deviation from the Supreme Court's case law, the LAG approved the revision in its judgment of 8 June 2016, which has now been published in writing. mwo