Every spring, seasonal allergies such as hay fever raise the same question: do recurring episodes of incapacity to work constitute new illnesses, or are they a continuation of the same underlying condition?

Quick Hits

• Germany’s Federal Labor Court ruled that recurring seasonal allergies like hay fever may be considered a continuation of the same underlying condition rather than new illnesses.
• Employers can contest sick leave claims for recurring seasonal allergies if the employee has been absent for more than six weeks within the relevant periods, shifting the burden of proof to the employee.
• Employers are generally protected against liability for allergic reactions in the workplace if they respond appropriately to known health risks and do not act with intent to cause harm.

Pollen Allergy as a Potential Continuing Illness

Germany’s Federal Labor Court (Bundesarbeitsgericht (BAG)) addressed this issue in its decision of January 18, 2023 (Ref. No. 5 AZR 93/22). The court emphasized that the existence of “the same illness” within the meaning of Section 3(1) sentence 2 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz (EFZG)) is not automatically excluded even in the case of “recurring (chronic) respiratory conditions.”

Hay fever is typically rooted in a permanent allergic condition that can recur seasonally and lead to incapacity to work. Different symptom presentations—such as sneezing fits, coughing, eye irritation, and difficulty concentrating—may therefore...

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