For both the employee and the employer, the case used to seem clear: an employee certified as unfit for work by their treating physician — meaning no work performed but full salary nevertheless paid via so-called continued wage payment for up to six weeks. The evidentiary value of such a certificate of incapacity for work was, in principle, unshakable…
This former blanket rule has not applied for several years!
In a series of recent decisions (e.g. case reference 5 AZR 248/23), the Federal Labour Court has increasingly restricted the evidentiary value of incapacity-for-work certificates. In particular, where the employment relationship is being terminated and an incapacity certificate is submitted in close temporal connection with that termination — perhaps tailored precisely to the termination date — the Federal Labour Court considers the evidentiary value of such a certificate to be shaken. The consequence is a reversal of the burden of presentation and proof: the employee must now substantiate the accuracy of the sick-note by detailed disclosure of the underlying illness, where necessary including a substantive medical expert statement. If this is not provided, the employer may simply refuse continued wage payment.
The same applies under another Federal Labour Court decision (case reference 5 AZR 93/22): if an employee has already been unfit for work for more than six weeks (= 30 working days) within a six-month period and then, within that same period, submits a new "initial" incapacity certificate to the employer, the Federal Labour Court has held that the employer may simply contest the employee's claim of a new initial illness by pleading lack of knowledge. The employee must then likewise substantiate and individually set out their alleged successive initial illnesses and also release their treating physicians from medical confidentiality. Here too, where this is not provided, the employer may simply refuse continued wage payment.
In both scenarios, the employee will have to sue for the refused continued wage payment before the competent labour court and there set out and prove the claim. A laborious and protracted path that often enough remains unsuccessful.
Employees are therefore well advised no longer to rely uncritically on every incapacity-for-work certificate.
At the same time, employers have most recently been encouraged by the Federal Labour Court to critically scrutinise submitted incapacity certificates from their employees on a case-by-case basis and, where appropriate, to refuse the employee's previously self-evident entitlement to continued wage payment in case of illness.
For all matters of employment law, our specialist attorney for employment law Mr Alexander Fuchs will be pleased to advise you.
