No entitlement to wages in the event of incapacity to work

In accordance with Section 3 (1) sentence 1 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz), an employee is not entitled to continued remuneration if they are responsible for their own incapacity to work due to illness. But in which cases does this actually apply?

In principle, the concept of fault in Section 276 (1) sentence 1 of the German Civil Code (BGB) applies in the law of obligations. This is because the fault within the meaning of § Section 3 (1) sentence 1 EFZG is a fault “against oneself”. This means that an employee’s behaviour is culpable if it deviates significantly from the behaviour a reasonable person would be expected to exhibit in their own interest. The concept of fault in Section 3 (1) sentence 1 EFZG is therefore only fulfilled by a person who acts particularly recklessly or even wilfully.

A broken hand after a fit of rage, tattoo infection, hang-gliding and kick-boxing: the concept of fault is ambivalent

After being reprimanded by his foreman, a goods filler from eastern Hesse lost his temper and repeatedly punched a sales sign with his fist, breaking his hand. His employer refused to continue paying his gross salary of €2,662.52 during his one-month of incapacity for work. After all, this was ultimately self-inflicted. However, the Hesse Regional Labour Court showed understanding for the employee’s emotional state. Such a loss of control is “humanly understandable”. With reasonable consideration, he should have realised that he was risking injury with his blows, but this was not sufficient to constitute gross negligence.

Just recently, in May 2025, the Schleswig-Holstein Regional Labour Court confirmed that an employer was right to refuse to continue paying his employee’s salary after she was unable to work for several days due to an infection in her new tattoo. While the nursing assistant argued that the tattooing and the resulting inflammation should be considered as separate issues as the risk of inflammation was only five per cent, the Regional Labour Court found that she was at fault. In doing so, it referred to the standard applied to the side effects of medication. These would be classified as “frequent” if they occurred in more than one per cent of cases involving fewer than ten people. This would show that the plaintiff should have expected the inflammation.

When a recreational hang-glider pilot suffered a lower leg fracture while pursuing his hobby and was unable to work for over six weeks, his employer refused to continue paying his wages. After the health insurance company took legal action to recovery the sick pay it had paid, the Federal Labour Court (BAG) rejected the classification of hang-gliding as a particularly dangerous sport. A sport is only considered as particularly dangerous if the risk of injury is so great that even a trained athlete cannot avoid it. This is not the case with hang gliding, where the rate of serious injuries is 1:48,000.

The martial art of kick-boxing, on the other hand, was classified as particularly dangerous by the Hagen Labour Court. In that case, an inability to work due to a kick-boxing injury did not justify a claim for continued payment of wages.