How to Get Away With Going Clubbing Even After You've Called in Sick

This article originally appeared on THUMP Germany.

Being sick sucks. If you catch some nasty virus, what with all the headaches and fever dreams plaguing you, you'll probably want nothing more than the ability to do banal things like eating, drinking, and maybe watching Netflix. But sometimes you're just too sick to go to work during the day, but you actually feel better in the evening. And maybe that same night, Gerd Janson or Nina Kraviz happen to be playing your favorite club. You can't not go—but what if your boss catches you? Will you get fired?

Anyone who hasn't been able to avoid exploitation—I mean, employment—has contemplated this question. In the event of doubt, most people decide to avoid taking any risks, and only leave the house for short visits to the doctor or not at all.

But… is that really necessary? Do you really have to stay in bed if you're sick? What about a broken arm—wouldn't it be beneficial for my recovery if I actually went out? If I wanted to something for my well-being, why not go to a techno rave that night? I always enjoy it, plus I move a lot and drink plenty of water. It's high time to get rid of these uncertainties, so I asked an expert. Christoph Hildebrandt is an employment and labor lawyer at Hensche in Berlin, Germany. I talked to him about what you're allowed and not allowed to do when you're on sick leave. Spoiler alert: it all depends.

So, Mr. Hildebrandt: Do I have to stay at home with a doctor's note?
No, that's not necessary.

So I can do whatever I want?
No. As an employee, you're obligated to act in a way that doesn't impede your recovery during the time you're unable to work. That means that you can't act in a way that would make your illness worse, or result in you catching another illness on top of the first one. It depends on the symptoms.

Do you have examples?
If you have the flu, it might make sense to stay in bed and not go walking in the rain. However, if you're suffering from depressive episodes, that's something else. With an illness like that, a walk or something [to that effect] could be helpful and even speed up recovery. So you'd only have to stay home when going out could be considered [a roadblock to your] recovery.

Take the following scenario: I'm on sick leave because my arm broken arm and I can't do my job as editor. But I can go dancing in a club. Suddenly my boss shows up. What can I expect?
What you're faced with in that instance mainly depends on how your boss deals with such situations. Basically, you'd have to proceed on the assumption that your boss will send you to Medical Service of the Health Funds, who'll find out whether you really were unable to work [or not]. Additionally, you have to consider that, in such a case, you'll be invited to an appraisal interview, where you'll be asked whether you really were unable to work because of your illness.

And what consequences can this interview have?
Your boss would decide whether to give you a warning or fire you based on your answers in the interview, and on the results of your medical evaluation by the Medical Service of Health Funds. However, you could only get fired if you were actually not unable to work because of your sickness but only pretended to be sick. That's a heavy violation of [your responsibilities], which gives the employer the right to fire you without warning.

Let's assume that I'm not making up my incapacity to work—that I'm really sick.
Then by going to the club, you "only" acted against your obligation [to avoid anything that would] impede your recovery.

So I can't be fired?
I'd say that firing you based on that neglect of duty wouldn't hold up during an investigation in court, at least not when you weren't given a warning for the same (or similar) [previous] actions.

The Labor and Employee Court in Cologne presided over a case in which an employee was fired while on sick leave because his boss saw him in a magazine photo, holding a beer in his hand. The Court ruled against the firing: a glass of beer is just fine, with all due respect. What about pubs?
[Like I said], your duties depend on your illness. I don't know of any illness in which enjoying an alcoholic drink could be seen as [slowing down your] recovery, but it's possible. You'd have to ask a physician.

But what if I also work as DJ in addition to my day job, and I play in a bar or a club while on I'm on sick leave?
It's important to ask yourself whether, by performing at a club, you acted in a way that impeded your recovery. As a [general rule of thumb], you could expect that your employer or a lawyer wouldn't trust your doctor's note.

So my employer can just fire me?
If your employer fires you because of something like that but you were actually sick, you could successfully fight it in court. For that to happen, you'd have to disclose your illness and free your doctor from physician-patient confidentiality. That's the only way [your doctor] would be able to testify in court that you were truly unable to work [at your other job] due to your illness even though you were playing in the club.

Alright, let's try another scenario: Let's say I'm going on vacation while on sick leave. Is that allowed?
Whether you go on holiday when you're unable to work depends whether the trip can be considered [helpful to your recovery] or impeding [to it].

[I know people who've] planned in advance to go on sick leave. What happens if the employer finds out?
They're basically pretending that they're unable to work. It's not real. As I said before, [that's one of the cases] where you can be let go without warning.

When can an employer require a drug test from his employees?
A drug test can be ordered in cases when there's a risk that the employee can cause great damage in the workplace, or when there's a possibility you're actually consuming drugs.

That means that just looking exhausted and having blue rings under my eyes isn't enough?
Not, not really. It's always decided on a case-by-case basis. How dire are the moments of suspicion, how dangerous is the job? For example, an overtired crane operator is a much bigger threat to others than an overtired postman.