According to its own statements, the car manufacturer Tesla has significantly reduced sick leave at its factory in Grünheide, Brandenburg, within just a few months. While this was still 17 percent in August 2024, plant manager André Thierig now puts it at less than 5 percent. This is reported by the Handelsblatt. Thierig attributes this development to various measures with which the company wants to strengthen employee loyalty and reduce absenteeism.
These include, among other things, additional offers for employees, but also changes in the way sick reports are handled. Tesla made headlines as early as 2024 because human resources manager Erik Demmler made home visits to employees on sick leave. Apparently as an “offer of help” and not as a check. In addition, Tesla also used attendance bonuses for particularly few sick days.
In particular, how the company deals with employees who have been ill for a longer period of time under labor law is now causing renewed criticism. In certain cases, Tesla stops paying wages and informs employees about the wage freeze if there is doubt as to whether the illness is a new one. This happens, among other things, to employees who are on sick leave for more than six weeks.
There is a reason why this time window was chosen: employers are only obliged to continue paying wages for up to six weeks per case of illness. If the illness continues, the health insurance company will cover your wages after six weeks, but no longer 100 percent. In the event of a new illness, the six weeks of continued payment of wages by the employer start again from the beginning.
Employees should provide evidence of new illness
That’s why Tesla resorts to the following solution: Affected employees are asked to explain that they have a new illness, sometimes with the expectation of disclosing medical details. Employees would have to “describe, based on the entire relevant period, what health impairments and complaints existed with what impact on their ability to work”. This is stated in the car manufacturer’s letters to the affected employees, which Handelsblatt was able to see.
This approach raises concerns among labor law experts. They point out that employees are generally not obliged to present diagnoses to their employer on their own. The extent to which employees have to take action and defend their diagnosis is considered controversial.
Continued payment of wages: This is what labor law says
We spoke to Marco Stahn about the topic of continued payment of wages in the event of new illnesses. He is a specialist lawyer for labor law at the Baker Tilly law firm in Frankfurt am Main.
Human Resources: Mr. Stahn, could you explain in more detail when a new illness actually occurs? When does the six-week clock start again?
Mark Stahn: A new period of continued payment of wages is generally only triggered if there is actually a new inability to work. According to case law, this is generally the case if, firstly, the old illness has completely healed, secondly, the employee is able to work again and, thirdly, the new illness is not based on the same underlying condition. However, if the periods of incapacity to work overlap, according to case law there is a so-called unity of prevention case.
What does that mean?
According to this construction of the Federal Labor Court (BAG), continued payment of wages is also limited to a period of six weeks if a new illness occurs during an existing incapacity for work, which also results in incapacity to work. In practice, it is often difficult to determine whether there is a single case of incapacity or whether the periods of incapacity to work should be separated from one another.
Under what circumstances do employers actually have enough reason to doubt the “new” inability to work?
The bottom line for companies is that employers can have doubts if the timing strongly militates against a genuine new illness. Typical constellations are, for example, when two incapacities for work follow one another immediately or there is only a weekend or a single day off in between. Case law regularly sees this as a strong indication that it is a continuous illness (BAG of December 11, 2019, Ref. 5 AZR 505/18). Particularly contentious are cases in which employees have worked briefly between two periods of sick leave – for example for a few hours or a day – but are then immediately declared unable to work again. Here, too, there is often the suspicion that there was no real break from a medical point of view.
If employers want to question a sick note, they must have reasons for this – such as rumors about working off or sick days always on Fridays. What is it like for long-term sick people?
In contrast to general doubts about incapacity to work, when it comes to the question of continued illness – according to current case law – it is generally sufficient for the employer to simply deny it. He does not initially have to present any further evidence that would eliminate the evidence of the correctness of a new incapacity to work (cf. BAG of July 13, 2005, Ref. 5 AZR 389/04; BAG of March 31, 2021, Ref. 5 AZR 197/20).
Why is that so?
The background is that employers generally have no insight into diagnoses or causes of illness – and are not allowed to receive this information automatically. The employer is also not obliged to obtain or research information about the continued illness after a previous six-week incapacity for work (see BAG of March 31, 2021, Ref. 5 AZR 197/20).
While the employer can identify behavior “from the outside” as an indication, this does not apply to the question of healing and new illnesses?
Correct.
Does the employer have to contact the doctor or health insurance company if there are doubts about the new illness?
In practice, the employer almost never knows what exactly the employee is sick with. Doctors are subject to confidentiality and employees do not have to disclose any diagnoses. Health insurance companies regularly check whether there is a continued illness, especially with regard to the sick pay to be paid. You can share your test results with your employer, but this does not have a high evidentiary value. In addition, health insurance companies are not considered a neutral body due to their own financial interests (see BAG ruling of January 18, 2023, Ref. 5 AZR 93/22). That’s why the employer often only has one option: After the six weeks have passed, they initially stop paying wages in the event of subsequent illnesses – i.e. a “wage freeze”. This ultimately forces the employer to clarify the matter.
This is also the path Tesla has taken. What happens if employees want to challenge such a “wage freeze”?
The employee must then assert his claim out of court or take the matter to the labor court. In the labor court process, this takes place in several stages. First of all, unless the medical certificates themselves indicate nothing and the employer denies the existence of a new illness, the employee must demonstrate that there was no ongoing illness. This means: In any case, he must describe in layman’s terms what health impairments he had during the entire relevant period and how these limited his ability to work. This also regularly includes releasing the treating doctors from their duty of confidentiality or submitting appropriate medical statements. Simply submitting a new certificate of incapacity for work is usually not enough.
According to the report, Tesla bases its actions on a BAG ruling from January 2023. What does it say?
With its ruling (ref. 5 AZR 93/22), the BAG expressly confirmed the previously described practice. It has made it clear that this graduated burden of presentation and proof at the expense of the employee is permissible – both under constitutional and European law. In the court’s opinion, it is fundamentally reasonable for employees, also from a data protection perspective, to describe their illnesses in detail in a dispute over continued payment of wages and, if necessary, to release their doctors from their obligation of confidentiality.
In summary, it is relatively easy for employers to doubt a new illness if there is very little time between sick notes. The employee has to prove this.
The judgment makes it clear: Anyone who cites a new illness after being unable to work for more than six weeks and wants continued payment of wages must, in case of doubt, be prepared to present their situation in a comprehensible manner. At the same time, it should be noted that the employer ultimately bears the risk of litigation and the associated costs if a continued illness cannot be proven. An automatic wage freeze is risky. In cases of doubt, stopping continued payment of wages may be the only practical means of obtaining legal certainty at all – knowing that you are taking on a legal risk.
As head of the online service, Gesine Wagner oversees the digital channels of human resources management and, as an editor, is primarily responsible for the topics of labor law, politics and regulation. She continues to be the contact person for everything that has to do with HR start-ups. She is also responsible for the CHRO Panel.
