If an employee is incapable of working due to illness as the result of alcohol poisoning, the employee is also principally entitled to continued payment of remuneration in the case of a relapse following treatment. If it cannot be clearly determined that the employee was responsible for the relapse due to a combination of factors based on a medical expert opinion for determining the employee’s fault in this regard, this uncertainty is at the employer’s expense (German Federal Labor Court, Decision of 18 March 2015 – 10 AZR 99/14).

Background
According to Paragraph 3 German Act on Continued Remuneration (“EFZG”), an employee is generally entitled to six weeks of continued remuneration in the case of illness if he is not responsible for the illness. If an employee is ill for a longer period of time on the basis of the same illness, he has a claim against his statutory health insurance fund for sick pay according to Paragraph 44 German Social Security Code V (“SGB V”). If the employer refuses to continue to pay the employee’s remuneration in the case of illness within the meaning of Paragraph 3EFZG, the employee can have his statutory health insurance fund continue to pay his remuneration. Any claims of the employee against his employer to continued payment of remuneration then transfer to the statutory health insurance fund according to Paragraph 115 German Social Security Code X (“SGB X”). In the present case, a statutory health insurance fund sued the employer of an alcohol-addicted employee for the continued payment of remuneration in respect of a claim resulting from transferred rights (Paragraph 115 SGB X).

The health insurance fund had previously paid the employee’s sick pay after the employee became ill und incapable of working due to alcohol poisoning and the employer refused to continue to pay the employee’s remuneration. The employee had previously undergone two inpatient treatments for substance abuse after which, however, relapses occurred. The health insurance fund argued that a claim to continued remuneration existed against the employer because the employee was not at fault with regard to his alcohol consumption. The employer was of the opinion that fault existed in the case of a relapse after multiple treatments had taken place. The local labor court and regional labor court upheld the claim.

Decision
The employer’s appeal to the German Federal Labor Court was unsuccessful. According to the Federal Labor Court, in the case of an alcohol-addicted employee, fault for the incapacity for work within the meaning of Paragraph 3(1) sentence 1 EFZG is regularly lacking due to the addiction even in the case of a relapse after treatment. The employee therefore also does not lose his entitlement to continued payment of remuneration. The Court considers alcohol dependency to be an illness. If this leads to the employee’s incapacity for work, fault within the meaning of the law governing the continued payment of remuneration cannot be assumed on the basis of current medical knowledge. As in the case of alcohol addiction, mutually dependent causes can also generally lead to a relapse following treatment. However, the Court also stated that in view of an abstinence rate of up to 50% following treatment measures, the fault of the employee in the case of a relapse cannot be generally excluded.

The Court then consulted a medical expert in order to clearly determine whether the employee had culpably caused the relapse within the meaning of Paragraph 3(1) EFZG. According to the Court, if this cannot be clearly determined, the uncertainty is at the employer’s expense. In the present case, the employer claimed that the employee was at fault. However, the socio-medical expert opinion in the concrete case excluded the fault of the employee.

Consequences
The Federal Labor Court noted that principally the same causes as in the case of the development of an alcohol addiction exist for the relapse of an alcohol-addicted employee and the thereby associated incapacity for work. Due to the many mutually dependent causes of an alcohol addiction, the fault of an alcohol-addicted employee in the case of a relapse cannot be clearly determined even in a medical expert opinion. The Federal Labor Court clarified that any doubts in this connection in terms of determining the employee’s fault are at the expense of the employer.