Giving notice during sick leave — is that even possible?

Although it may seem surprising at first glance, Austrian employment law does not prohibit an employer from giving an employee notice to terminate employment or otherwise provide special protection against dismissal in the event of absence due to illness. Under employment law, giving notice is also permissible during sick leave, if it is not based on an unlawful motive such as discrimination (see below). Nevertheless, there are a few special considerations to consider when giving notice during sick leave.

What should be considered?

Receipt of the notice of termination

The regular notice periods also apply during sick leave. As these only begin to run upon receipt of the notice of termination, employers must ensure that the notice letter is actually received by the employee during their sick leave. If receipt is delayed — for example, due to prolonged absence from the home  address (e.g., hospitalization) or if the employee is bedridden and unable to check their mailbox regularly — the start of the notice period is postponed accordingly. Therefore, in practice, it is advisable to allow for a generous "time buffer" and, if possible, to hand deliver  the notice letter  to the employee in person to be able to  confirm receipt.

Notice due to sick leave?

In principle, frequent or long-term absences due to illness can constitute objective grounds for termination. These absences can disrupt operations and strain  working relationships potentially providing  justification for termination.

However, particular sensitivity is required for employees with disabilities: if a high rate of absence is used as grounds for termination, this may constitute indirect discrimination if it effectively disadvantages people with disabilities. To avoid legal risks, when analyzing absences, it is necessary to check whether they are related to disability or common illnesses. Discriminatory termination can be declared legally invalid or result in the employer being liable for damages to the employee. Please note, for employees with beneficiary disabled status, the disability committee’s consent must be obtained before giving notice.

Sick pay beyond the end of the employment relationship

If an employment relationship is terminated during sick leave by the employer giving notice or by mutual agreement, the employment relationship ends at the end of the notice period. However, the obligation to continue paying remuneration (sick pay) may continue beyond the end of the notice period — until the employee has recovered or exhausted their statutory entitlement to sick pay for the current working year. The following scenarios may lead to continued payment of sick pay, if there is still a residual entitlement from the current working year at the time of termination:

• Continuation of incapacity for work: Notice or mutual agreement to terminate the employment relationship is given during existing sick leave, and the incapacity for work due to this sick leave continues beyond the end of the employment relationship.
• Subsequent illness: Notice or mutual agreement to terminate the employment relationship is given during existing sick leave. The employee becomes fit for work but falls ill again before the end of the employment relationship as a result of the previous illness that caused the sick leave (e.g., complications).

There is no obligation to continue paying sick pay if employees are fit for work at the time of being given notice — even if they report sick immediately afterward.

Conclusion

Under Austrian employment law, giving notice during sick leave is generally permissible. The key factors are correct delivery, compliance with notice periods, careful examination of any continued payment of sick pay entitlements and the exclusion of discrimination against employees with disabilities. Therefore, employers should seek legal advice in individual cases.

Checklist

Employers should note the following to avoid legal risks:

• Ensure receipt of notice of termination and allow for a time “buffer”: The notice period only begins when the notice of termination is actually received. Delays in receipt may postpone the date of termination.
• Notice of termination due to absences: For employees with disabilities, it is important to check whether the absences are related to disability — otherwise there is an increased risk of discrimination.
• Continued payment of remuneration beyond the end of employment: Check whether there is an entitlement to continued payment of sick pay beyond the end of employment, which should be considered in the calculation of financial termination claims.
• Legal advice in individual cases: Legal advice should be sought, especially in sensitive situations — for example, for existing disability or unclear continued payment of sick pay.

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