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I am interested in whether (and if yes, how?) you would go about contacting an employee on sick leave in this very specific situation:

There are three people involved: CEO Carl, Manager Mike and Employee Eric.

Eric calls in sick on Monday. Mike and Carl have good reason to believe Eric is not really sick but rather venting off anger originating from a dispute with Carl.

Eric is scheduled to attend a conference on Tuesday. Eric did not mention whether he'll be back on Tuesday to attend the conference. So Carl and Mike have to assume that he'll not attend and thus have a conference ticket to spare.

Before Carl and Mike give the conference ticket to someone else: do they contact Eric to find out whether he'll be attending the conference? Note that this conference is one of the yearly highlights for Eric; Mike is aware of that.

Specifically in German legislation: how would they have to phrase the question so that they don't get in conflict with the law?

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    Comments are not for extended discussion; this conversation has been moved to chat. – Jane S Nov 8 '18 at 3:49
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So Carl and Mike have to assume that he'll not attend and thus have a conference ticket to spare.

Don't assume, ask.

Eric already called in sick, so try contacting him by that same mean. Consider giving him a call in case there is a chance he won't see his email.

Now, being written or spoken, try something in the lines of:

Hello Eric. Sorry to hear you feel sick, I hope you get well soon. Just remember that tomorrow is the conference, so tell us if you don't think you will make it.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Jane S Nov 8 '18 at 3:49
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Specifically in German legislation: how would they have to phrase the question so that they don't get in conflict with the law?

There is no problem with the law no matter how you phrase it. Even a direct "I don't believe you are sick, please bring your doctor's note on Tuesday" would not break any law (assuming the employee has a contract that requires him to bring a note or you have sufficient indication that he might be faking it). For any non-German reading this, please remember Germany has no concept of "sick day allowance". You are sick when a doctor says you're sick. Going to the doctor and getting such a note is free (well, already included in your mandatory health insurance). And the employer is allowed to ask for proof in form of a doctors note, most put it into their contracts.

Please note that "strictly speaking not illegal" might not be the level you want to communicate with employees. Personally, I would feel very offended if someone thought I'd be faking it. So being nice and respectful certainly does not hurt.

You may also not want to disturb a sick employee by anything intrusive like a phone call. This is not an emergency, neither for the company nor for him.

Send him a message, maybe EMail or SMS if you have his cell number. I will shamelessly plagiarize the existing answer and modify it a bit:

Hello Eric. Sorry to hear you feel sick, I hope you get well soon. Tomorrow is the conference. If you cannot make it, we need to send a replacement and they need to know before they leave the office today at 16:30. So please contact us before 16:30, otherwise we will have to send somebody in your place.

The point here is to set a clean limit. It's not arbitrary, it's a deadline for the business requirement that the trip has to be scheduled and the person needs to plan for the following day. But it leaves no room for interpretation what happens if the employee does not communicate (because if they are sick and maybe went to bed or took a lot of painkillers, not communicating would be the default).

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    @JoeStrazzere or he would be more offended. An employee that fakes being sick is not the kind of employee I'd trust to react rationally to bring accused of doing exactly this. – DreamConspiracy Nov 6 '18 at 21:59
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    Please note that it's a custom in Germany (or at least parts of it) that for only one or two days of sick leave (if it doesn't occur all too often) the company doesn't ask for any doctor's notes. – Val Nov 7 '18 at 5:11
  • "But it leaves no room for interpretation what happens if the employee does not communicate" Actually, it does: if Eric doesn't communicate, who goes to the conference, Eric or the replacement? I cannot tell from that text, so I don't think Eric can either. – Jory Geerts Nov 7 '18 at 7:51
  • @JoryGeerts Excellent point... it seemed clear to me yesterday, but I fixed it. – nvoigt Nov 7 '18 at 7:53
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    @Val I would not call that a custom. Some companies include this in their employment contract, and if they do it is usually "on the third working day" or "on the third day". However other companies say "on the first day". I have had both these cases in the past myself. I don't think we can say it's customary. It doesn't even depend on the size or the business field. I think it is entirely a company policy made up by someone just making it up. – simbabque Nov 7 '18 at 10:45
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IANAL but I have legal training in employee laws of Germany (I am a German). This is not legal advise.

Nothing in the law prevents you from contacting a sick employee. What you cannot do is ask him to perform any work, no matter if it takes five minutes. So you can ask him about tomorrow, but you can't ask him to, e.g. update his booking details in the travel system.

If the employee went to doctor to get a Krankschreibung (official "Arbeitsunfähigkeitsbescheinigung"), that paper should detail how long the doctor considers him sick. Since this is normal information supplied upon sick leave, you are free to ask it. Something along the lines of :

Can you already say if you will be sick tomorrow as well? As you know the XYZ conference is tomorrow and we need to decide upon the ticket.

Your other option, depending on any travel that might be required, is to simply give the ticket to someone else on the condition that if Eric shows up tomorrow, he should get it back.

One last note: Whether or not you believe Eric is faking it or not has absolutely no legal impact whatsoever. If you have doubts, you can ask for the above mentioned paper from a doctor. If a doctor confirms that Eric is sick, there is nothing you can do about it.

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    "If a doctor confirms that Eric is sick, there is nothing you can do about it." Nitpick: That's wrong - the employer can ask the health insurance to check whether the employee really cannot work (SGB V, § 275 SGB V Begutachtung und Beratung). However, that's a rather desperate option, and may backfire. – sleske Nov 7 '18 at 12:18
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    @sleske its doubtful they would do that for a single day of sickleave if this doesn't happen frequently (or are even allowed to do that). Also, it's basically impossible to check if someone was actually sick in the past. – Josef Nov 7 '18 at 12:56
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    @sleske - negative. If you read that law, you notice that there is a plethora of conditions and restrictions. This would apply if the employee is "suspiciously" ill, but the suspicion cannot be based on one incident. If he's ill every 2nd Friday, and only on Fridays, you could have a case. There is a lot of case law about sick leave in Germany, and the strongest evidence is from terminations because of sickness, which are incredibly rare but do happen - but we are talking specific patterns over long periods of time. – Tom Nov 7 '18 at 15:41
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IANAL and I am not German.

If Mike and/or Carl have Eric's contact information, then they could just call him and ask: "Hey, we heard you're sick, are you going to make it to the conference?" In my estimation, the "we heard that" does not violate privacy laws; if a person is away from the office on unscheduled vacation, the common thing to hear (at least in my experience) is that the person is sick. Using company-usual contact methods (company email, internal chat, etc) is preferable if it is reasonable to believe that Eric will access those things while sick.

If Carl and Mike make a reasonable effort to contact Eric, and there is no response, then (imo) Carl and Mike can give away Eric's ticket. But first Carl and Mike should make their best good-faith effort to contact Eric to check if his illness is going to take him out of commission the day of the conference (sometimes you just don't feel well one day and want to skip work but are not actually "sick"; just because Eric comes in the next day perfectly healthy does not mean he lied about taking a sick day).

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    Since the (authorized) manager will be calling on behalf of the company, and Eric reported his illness to the company, it indeed is no privacy violation. – MSalters Nov 7 '18 at 10:58
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Why bother asking the question? They should call him and tell him to take tomorrow off (with pay and without impacting any annual or sick leave) and tell him that the ticket to the conference will be given to someone else.

This is a win-win situation, either he is sick and they are being nice, or he isn’t and they aren’t. Either way, he gets what he deserves.

If Eric wants to go more than he wants to cause problems, he can insist that he will be able to work and attend the conference.

Any way you look at it, no questions.

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    Valid point. Why bother? Because Eric is a valuable employee and, deservedly or not, making Eric miss out on the conference might make him leave. – marstato Nov 7 '18 at 12:24
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    If faking it, Eric would be the one making him miss it... And if really sick well then it's the sickness. I don't see how you, Mike or Carl are "making" him miss it... – DarkCygnus Nov 7 '18 at 14:25
  • @DarkCygnus You are right. It is Eric being officially sick that makes him miss. Eric's perception is another story, though – marstato Nov 7 '18 at 16:29
  • @marstato: it doesn’t have to be his being official sick, it can be his refusal to say he is better. Today is gone, there’s no percentage in trying to get him to admit to it. Tomorrow is still in the future, if he doesn’t want to go to the conference, that’s on him. All he has to do to attend is say he thinks he will be up to it and will be picking up the ticket i the morning. If he doesn’t, that’s his choice. – jmoreno Nov 8 '18 at 2:23
  • I agree with this, because often, if I've called in sick today, I have no idea if I'll still be sick tomorrow. However, a conference which I've been looking forward to may cause me to come into work before I'm fully recovered, even if my doctor has advised me not to. If Eric is supposed to be coming to the office first (which is implied by the fact that he isn't currently in possession of his ticket), I wouldn't even bother to call him - simply reassign the ticket, and if he comes in, tell him you had to do so because you didn't know if he would still be sick. – timbstoke Nov 8 '18 at 8:23

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