Judgment Worker does not have to disclose employer's disease diagnosis

Workers should not have to disclose illness diagnoses
Stuttgart (jur). Employees and their physicians should no longer have to disclose the diagnosis of the disease in a dispute about continued pay. According to a ruling issued by the Landesarbeitsgericht (LAG) Baden-Württemberg in Stuttgart on Friday, 8 July 2016, employers must trust the health insurers' assessment that a disability is based on a first illness that obliges the employer to continue paying wages (Ref .: 4 Sa 70/15). Thus, the LAG contradicted the case law of the Federal Labor Court (BAG) in Erfurt, according to which employees may be forced to exempt their doctors from confidentiality.

The plaintiff was hired as a group leader. From 22 September 2014 to 3 March 2015 she was ill for a total of 65 days - significantly more than every second working day. For this purpose she submitted 14 medical certificates. These were predominantly so-called first certificates, ie the certification of a new disease. Only last, for the period from 5 February to 3 March 2015, she submitted five follow-up certificates for the same condition after the initial certificate.

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When the woman was ill again from 19 March to 17 April 2015, the employer refused to pay. It can be assumed that this is a continuation illness and that the six-week sick pay claim for the underlying illness has already been fulfilled.

A continuation illness is a disability based on the same underlying cause. It does not matter if the underlying condition returns to its original or new symptoms. If such a continuation illness occurs after less than six months, then both or several work incapacities are merged and the remuneration continued for a total of six weeks.

However, the employer copy of a certificate of incapacity does not contain any information about the diagnosis. The health insurance receives this information but. When asked, she informed the employer that there were no pre-existing medical illnesses from 19 March 2015 on.

Nevertheless, the employer refused to pay continued payment. The doctors probably did not examine the woman properly or mistakenly misjudged that it was a sequelae disorder. Therefore, the group leader would have to disclose the diagnoses of her certificates of incapacity so that he could review them.

The group leader partially released their doctors from confidentiality, so that they could certify that the new disease is not based on one of the earlier underlying conditions. However, the employer did not receive the specific diagnoses.

Like the Reutlingen Labor Court, the LAG Stuttgart has now decided that it is still obliged to continue paying wages.

Both courts thus opposed the case law of the BAG. In 2005, this had given up its previously employee-friendly case law. According to the new judgment, however, the employee must release his doctors from confidentiality if he wants to save his further right to paid salary after six weeks of illness (judgment of 13 July 2005, ref. 5 AZR 389/04).

The LAG Stuttgart considers this to be contradictory. It wants to end this case law and return to the former employee-friendly case law.

As a reason, the Stuttgart judges referred to cases in which the health insurance has paid sickness benefit. If, nevertheless, a claim for continued payment of remuneration existed, this claim passes to the health insurance fund. 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 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".

Similarly, as with the evidential value of a certificate of incapacity for work itself, the worker must be able to withhold the diagnoses at least until "the employer presents facts that give rise to doubts as to the accuracy of the health insurance claim". In this particular case, the employer did not do so.

Due to its deviation from the high court case law of the BAG, the LAG approved the appeal with its ruling of 8 June 2016, which has now been published in writing. mwo