Are employees on sick leave allowed to stay away from work but still carry out their work as a works council member? According to a ruling by the Hessian State Labor Court (LAG), this is possible under certain circumstances. Because sick leave and incapacity for office are not always the same.
The case: A tanker on sick leave demands a return to the works council office
The case concerned an aircraft refueler at Frankfurt Airport who has been unable to work since the end of 2022. Since then, the man, who is also a member of the local works council, has not attended any of the committee’s meetings. In mid-November 2025, he informed the works council through his legal counsel that his health did not prevent him from carrying out his mandate and that he therefore wanted to take up his office again.
However, the works council chairman rejected this in an email at the beginning of December and argued that the colleague was unable to work until further notice due to illness in accordance with Section 25 Paragraph 1 Sentence 2 BetrVG. Therefore, a substitute member must be considered as such named replacement can be loaded.
What Section 25 BetrVG regulates to prevent works council members
After no agreement was reached, the works council member applied to the labor court for an interim injunction: the committee should be ordered to invite him to all meetings again; the employer to grant him undisturbed access to the company premises again.
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However, the employee representative’s demand was not heard before the Frankfurt (Main) labor court. According to the first instance decision, there was no reason for a corresponding order: In particular, the man had contradicted himself by now seeking interim legal protection after he had previously “accepted a long period of time” without being summoned. However, the tanker did not let the decision rest and filed an appeal – with success.
Why the first instance rejected the application
The Hessian State Labor Court partially changed the decision and granted the application for an invitation to the works council meetings. In its justification, the chamber pointed out, among other things, that sick leave and incapacity to hold office cannot always be equated: “The inability to work due to illness does not necessarily mean that the works council member is also incapable of carrying out his official duties.” Rather, there could be constellations in which an illness prevents the employee from fulfilling his employment contractual obligations, but does not automatically prevent him from fulfilling his works council office.
Therefore, the judges continued, the works council was allowed to “view the man as prevented” at least until his report in November 2025. After that, however, the committee was “no longer able to easily conclude that the applicant was unfit to work”. This is also shown by a fundamental judgment of the Federal Labor Court on the subject (BAG, judgment of November 15, 1984, Ref. 2 AZR 341/83 – Rn. 19).
LAG Hessen: Sick leave does not automatically mean incapacity for office
Since the man was refueling aircraft and doing hard physical work, he was unable to perform his duties due to “orthopedic problems”. As a works council member, however, he is not subjected to heavy physical strain, but rather has to “take part in meetings” and “conduct discussions with employees if necessary”. That is possible.
According to the conclusion of the decision, the works council chairman must therefore invite the man back to meetings for “the entire duration of the remaining term of office” until further notice, despite his sick leave. In order to actually get onto the company premises, the employer must also issue appropriate day passes.
Physical work vs. works council work: Why the difference is crucial
In its decision, the chamber also gave practical advice that is equally important for HR and works councils: Accordingly, the distinction between incapacity for work and incapacity for office does not apply to works council members who are fully released from their mandate in accordance with Section 38 (1) BetrVG. The reason is that for them, committee work takes the place of the employment contract deadlines.
According to the highest court case law (cf. BAG, decision of July 28, 2020, Ref. 1 ABR 5/19), if an employee representative who has been released is on sick leave, “it is clear that he is unable to fulfill the duties incumbent on him during his release in accordance with Section 38 Paragraph 1 BetrVG due to illness and that he is prevented from carrying out his works council duties”. The fact that works council work is a voluntary position does not change this.
Frank Strankmann is an editor and writes offline and online. His focus is on the topics of labor law, co-determination and regulation. He is also responsible for other projects for media brands from FAZ Business Media GmbH.
