Sick During Comp Time? Austrian Court Says You Lose Those Hours
Published on 07/26/2026 at 14:03 | Redaktion boerse-global.de
Getting ill while on compensatory time off doesn’t entitle workers to reclaim those hours — a position the Austrian Supreme Court has now firmly upheld.
Why a doctor’s note won’t save your time bank
When an employee falls sick during a period of time off in lieu, that free time continues to count as used, according to an expert from the Austrian Trade Union Federation (ÖGB). The law provides no mechanism for restoring the time credit.
The reasoning: during compensatory leave, there is no obligation to work that could be nullified by incapacity. Unlike annual leave, time off in lieu exists specifically to reduce overtime balances. The Supreme Court (OGH) has confirmed this interpretation.
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Annual leave follows different rules
Vacation operates under a separate framework. If an illness lasts longer than three calendar days during annual leave, the leave is interrupted. The conditions: the employee reports the sickness immediately and submits a medical certificate upon return. Those sick days are then not deducted from the vacation entitlement. This protection applies exclusively to annual leave — it cannot be transferred to compensatory time.
What courts say about partial incapacity
The Baden-Württemberg State Social Court (Case L 10 U 135/25) clarified: anyone performing their full contractual work duties is considered fit for work. Even if the employee cannot handle additional duties like on-call service. German law currently does not recognise “partial incapacity for work.”
The Hamm State Labour Court (Case 10 Sa 156/15) addressed a different scenario: threatening to visit a doctor after having annual leave denied can justify immediate dismissal. A subsequent sick note then loses its evidentiary value.
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Changes on the horizon
Legislators are planning to introduce genuine partial incapacity for work by 2027. This would allow gradations of 25, 50 or 75 percent.
The evidentiary weight of medical certificates is also coming under increasing scrutiny. When sick notes appear suspiciously timed around a dismissal or the end of a worker’s notice period, courts are allowing challenges.
The ÖGB expert’s advice: inform your employer thoroughly about planned absences before taking compensatory leave. And be aware: if you get sick, that time credit is gone.
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