Austrian OGH: Sick Leave for Disabled Employees Requires Individual Assessment

Sept 26, 2025 Benn-Ibler Rechtsanwälte

Austrian OGH: Sick Leave for Disabled Employees Requires Individual Assessment

The plaintiff in the present case had been employed by the defendant, the City of Vienna, as a certified medical technician beginning in 1993. In 2000, the plaintiff was classified as a beneficiary with an 80% disability due to an autoimmune disease.

The employment relationship ended on 31 December 2020, citing incapacity for work and a high number of sick leave days. From 2015 to 2020, the plaintiff was absent from work between 52 and 297 days each year, and future projections indicated sick leave of at least nine weeks per year.

The plaintiff is currently seeking a declaration affirming the continued validity of the employment relationship and is challenging the termination. She contends that the dismissal lacks legal validity as the central commission did not provide her with formal notification of its approval, in contravention of Section 37(3) of the Vienna Employee Representation Act (Wiener Personalvertretungsgesetz, hereinafter Wr PVG). Furthermore, she asserted that consent from the Disability Committee, as required under Section 8(2) of the Austrian Disability Employment Act (Behinderteneinstellungsgesetz, BEinstG), had not been obtained.

OGH: Conditional sick leave differs from simple sick leave

The OGH determined that it is necessary to distinguish between disability-related absences and regular sick leave, as failing to make this distinction may result in indirect discrimination against employees with disabilities.

When evaluating health suitability under Section 42 (2) (2) of the Vienna Contractual Employment Act (Wiener Vertragsbedienstetenverordnung, hereinafter Wr VBO 1995), only standard sick leave days shall be initially taken into account. Sick leave related to a disability is considered only if it is not reasonably possible for an employer to prevent these absences.

Regardless of whether the total annual sick leave of seven weeks includes disability-related absences, it is still required to evaluate if the employer has taken appropriate steps to address disability-related sick leave.

As the findings do not specify whether the plaintiff may be incapacitated for work for more than seven weeks per year in the future due to ‘simple’ sick leave, the decision is made on the basis of incomplete information.

Furthermore, the OGH has emphasised that although a medical report from a public health officer concerning incapacity for work represents a significant piece of evidence, it alone is insufficient to definitively establish unsuitability on health grounds as outlined in Section 42(2)(2) of the Wr VBO 1995.

OGH 8ObA18/25t (12.08.2025)