What does "sick on a day off" mean in the shift schedule?

The term describes the situation where an employee is unfit for work on a day that is entered in the shift schedule as a day off. A distinction has to be drawn between a day that was planned as a day off from the outset and one that only became a day off afterwards – after a sick note, for example.

How does "sick on a day off" count in the shift schedule?

If the day was scheduled as a regular day off, it counts neither as a sick day nor as a working day – there is no continued payment of wages and no time credit. If the day was actually meant to be a shift and the employee was only taken off the schedule because of the sick note, it counts like a regular sick day, and in law the employer owes damages in the amount of the continued payment of wages lost.

When may the employer change the shift schedule because of a sick note?

Retrospective changes are possible in principle, as long as they meet the standard of equitable discretion under Section 106 GewO (Gewerbeordnung, the German Industrial Code). A change that is evidently made only for the purpose of avoiding continued payment of wages is not permissible. The benchmark is the previous scheduling practice in the business.

What can I do if I was taken off the shift schedule because of illness?

First, document the original target shift schedule and the usual distribution of shifts. Then demand the money from your employer in writing – usually within three months of the day on which the pay fell due. If the employer sticks to its refusal, the way to the labour court is open – with a principal or alternative application for damages under Section 280(1) BGB (Bürgerliches Gesetzbuch, the German Civil Code).

Sick on a scheduled day off: the German rules

Shift schedule, illness and days off: three cases that come up in every shift-based business

Where shift schedules do not follow a fixed rhythm but are drawn up afresh every month– in care work, in retail, in hospitality, in manufacturing – shift scheduling and illness collide regularly. Three constellations come up particularly often.

In the first case, an employee calls in sick at short notice and the employer retrospectively changes the shift schedule to "off".
In the second case, an employee gives advance notice of a period of incapacity for work – because of a planned operation, say – and is then not scheduled for that period at all.
In the third case, an employee falls ill on a day when the shift schedule has them off anyway.

All three situations go under the heading "krank im Frei" (sick on a day off) – but in employment law they have to be assessed in completely different ways.

The legal framework for illness in shift work

The answer in German employment law lies in the interplay of four provisions.

Section 106 GewO (Gewerbeordnung, the German Industrial Code) gives the employer the right to issue instructions: the employer sets the timing and distribution of working hours, as long as nothing different is laid down in the employment contract or the collective agreement. The limit is drawn by Section 315 BGB (Bürgerliches Gesetzbuch, the German Civil Code) – every instruction must meet the standard of equitable discretion, that is, weigh up the interests of both sides. The Federal Labour Court (Bundesarbeitsgericht, BAG) made clear in 2017 that inequitable instructions are ineffective and that the employer alone bears the risk for them.

Section 3 EFZG (Entgeltfortzahlungsgesetz, the German Continued Remuneration Act) governs continued payment of wages during illness. The condition for it is the loss-of-earnings principle: without the incapacity for work, the employee would actually have worked and been paid. If this so-called sole causality is missing – because the day would have been free anyway, for instance – then there is no continued payment of wages either.

And finally Section 612a BGB, the prohibition on victimisation: an employer may not put an employee in a worse position because that employee lawfully exercises their rights or acts considerately, for example by giving notice of an upcoming operation.

These four together decide what is permissible when it comes to being sick on a scheduled day off, and what is not.

When the shift schedule is “built around” the sick note – what a recent ruling makes clear

A case from outpatient care brought clarity in 2023. An employee had told her employer early on that she would be absent for a few days because of an operation. The employer then drew up the shift schedule so that she had not a single shift on exactly those days – and paid no wages for that period. She still reached her monthly hours, because she worked more in the remaining weeks.

The court saw this as clearly overstepping the mark. The schedule had evidently been built around the announced illness in order to save the continued payment of wages. As a comparison the court drew on the previous practice: in the preceding months the employee had regularly had three shifts a week – the fact that she was scheduled for almost nothing in the week in question did not fit that picture. The employer had to pay in arrears what she would have received as continued payment of wages under fair scheduling.

In practice this means: anyone who gives advance notice of an illness – a planned operation, for instance – must not be put in a worse position than someone who calls in sick at short notice. If a shift schedule looks as though it was deliberately built around a sick note, the employer has to pay. Communicating honestly costs you no entitlements.

LAG Sachsen (Saxony Regional Labour Court), judgment of 08.09.2023, case no. 2 Sa 197/22

How does "sick on a day off" count in employment law?

That is the question that concretely concerns many employees. The answer depends on why the day is a day off.

If a day was scheduled as a regular day off – on a day of the week that is typically free, for instance – then the work is not lost because of the illness. There is neither continued payment of wages nor a credit to the working time account. The Federal Labour Court confirmed this back in 2004 (5 AZR 58/03) and so did the LAG Berlin-Brandenburg in 2018 (7 Sa 1498/17).

If the employee was not scheduled at all on a day on which they would normally have been scheduled, it gets more complicated. This is where the judgment from Saxony comes in: if leaving someone off the schedule does not meet the standard of equitable discretion – in particular if it evidently happened because of the (announced) incapacity for work – the employer owes damages in the amount of the continued payment of wages lost.

And what if a day was set to "off" retrospectively, after a sick note had come in? Then the original schedule remains the benchmark. What matters is the state of the planning the employee was entitled to rely on.

Practical guidance for employers

Anyone who wants to schedule in a legally compliant way should be able to document comprehensibly for every shift schedule why an employee is or is not scheduled on a particular day. Previous scheduling practice is the most important benchmark: anyone who regularly schedules three shifts a week cannot suddenly schedule only one without an objective reason – least of all at exactly the moment when an incapacity for work is on the table.

Works council codetermination, too, is no automatic protection against inequitable instructions. The LAG Sachsen put this very plainly: works councils can overlook mistakes as well. Anyone who cancels shifts on exactly the days of an announced period of incapacity bears the full risk. Exceptions – an atypically empty week, for example – can only be defended if the operational reason is documented and the sick note was not the actual trigger.

Practical guidance for employees

Employees have no entitlement to particular shifts or particular days of the week. They do, however, have an entitlement to a distribution that matches customary practice and the employment contract. Anyone who has the impression that they were deliberately left off the schedule because of a sick note or an announced operation should secure two things: the original target shift schedule and an overview of the shifts actually worked in the preceding months.

Asserting the claim works in two stages. First the claim is asserted with the employer in text form – usually within an exclusion period of three months from the date the pay fell due. If the employer refuses, a second deadline starts running for going to the labour court. If the claim is based on Section 3 EFZG, it is worth applying in the alternative for damages under Section 280(1) BGB – it was precisely this alternative application that tipped the balance in the case before the LAG Sachsen.

Conclusion

The subject of "shift schedule, illness, day off" can be reduced to a single sentence: whether a day of illness is paid depends on whether work had been scheduled for that day beforehand or – under fair scheduling – would have had to be scheduled. Employers who want to schedule in a legally compliant way, and employees who want to enforce their entitlements, cannot get around clean, comprehensible shift scheduling.

That is exactly where clockin comes in: the software documents every change to the plan, makes shift distribution transparent and supplies the data that counts if it ever comes to a dispute. Create shift schedules that stand up legally.

How important good cover arrangements are here – not just legally, but on a human level – is shown by an observation from Paula Menninghaus, co-founder of Strong Partners and a clockin customer:

“It takes all the pressure off our people: when they are genuinely ill, they can call in sick with a clear conscience, because they know that for the person taking over, everything is ready and waiting like a packed bag.” – Paula Menninghaus, Co-Founder & Managing Director, Strong Partners

In the podcast Paula describes how this trust in the team goes beyond calling in sick – and why she considers it a central building block of a crisis-proof company culture. More on this in the podcast episode “Angepackt”.

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