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Continued employment with impaired fitness for work

Continued employment with impaired fitness for work

Employees have a fundamental claim against their employer to be genuinely deployed and to receive payment of their remuneration, inasmuch as they are not unfit for work. If they are incapable to work due to illness, employees are entitled to sick pay. Should employees be permanently unable to fulfil the obligations under their employment contracts, dismissal may be an option.

The Federal Labour Court recently had to decide a case where the claimant’s fitness for the assigned work schedule was impaired. A nurse, who for health reasons was no longer able to work night shifts, claimed to be assigned a shift schedule compatible with her condition and to be paid the remuneration agreed upon in her employment contract. The employer considered the nurse to be completely unfit for work, as she was no longer able to perform mandatory night duties, and refused to deploy her.

The Federal Labour Court confirmed the claim of the employee. The fact that the employee, for health reasons, was no longer able to work night shifts did not mean that she was entirely unfit for work. It is rather the hospital operator who is obliged to schedule and deploy the nurse at times other than during the night shift. The employer has to take the health problems of the employee into account when drawing up its shift plans.

Recommendation for Practice:
This judgement is of considerable relevance not just for hospital operators. It rather applies to all companies who employ workers in shifts. Inasmuch as the continued employment of a worker who, for health reasons, is no longer able to work night shifts is possible during the other shifts the employer must deploy that worker at times other than during the night shift, even if this might possibly necessitate considerable organisational effort. This judgement is thus in a line with a previous judgement of the BAG according to which the operator of a retail market is to be obliged to deploy a worker who feels unable to sell alcoholic beverages for religious reasons elsewhere within the store, should this be organisationally possible.

By Tobias Grambow

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