For both the employee and the employer, the case seemed clear: the employee was certified as unfit for work by the treating physician — meaning he was not required to work, yet continued to receive his salary in full by way of so-called continued remuneration (Entgeltfortzahlung) for a period of up to six weeks. The evidentiary value of such a certificate of incapacity for work was, in principle, unshakeable…
This former rule has not applied so broadly for several years now!
In several recent decisions (for example under case no. 5 AZR 248/23), the BAG (Federal Labour Court) has increasingly restricted the evidentiary value of certificates of incapacity for work. In particular, where the employment relationship is being terminated and a certificate of incapacity for work is submitted in close temporal connection with that termination — and where, moreover, it may have been issued to fit precisely with the termination date — the Federal Labour Court regards the evidentiary value of such a certificate as undermined. The consequence is that the burden of pleading and proof is reversed, i.e. the employee must now demonstrate the correctness of his sick leave through substantiated submissions on the reason for his illness, where necessary supported by a substantive expert medical opinion. If this is not provided, the employer may simply refuse to continue paying remuneration.
The same applies, according to a further decision of the Federal Labour Court under case no. 5 AZR 93/22, where an employee had already been incapacitated for work for more than six weeks (= 30 working days!) within a six-month period and, within that same six-month period, again submits an INITIAL certificate of incapacity for work to the employer. The Federal Labour Court ruled that the employer may then simply dispute the employee's assertion of a new initial illness on the basis of lack of knowledge. In this case as well, the employee must then substantiate and specify in detail his alleged various initial illnesses and additionally release his treating physicians from medical confidentiality. Here, too, if such evidence is not provided, the employer may simply refuse to continue paying remuneration to the employee.
In both situations, the employee will then need to bring an action before the competent labour court (Arbeitsgericht) for the withheld continued remuneration and there set out and prove his claim. This is a laborious and protracted route which, more often than not, remains unsuccessful.
Employees are therefore well advised no longer to rely without scrutiny on every certificate of incapacity for work.
At the same time, employers have recently been encouraged by the Federal Labour Court to critically scrutinise certificates of incapacity for work submitted by their employees in individual cases and, where appropriate, to refuse an employee the previously self-evident claim to continued remuneration in the event of illness.
For all matters of employment law, Mr Alexander Fuchs, Specialist Lawyer for Employment Law (Fachanwalt für Arbeitsrecht), will be pleased to advise you.
