Current case law on the certificate of incapacity for work

The Federal Labor Court recently had to rule on a case in which an employee gave notice of termination and submitted a certificate of incapacity for work to the employer on the same day as the notice of termination was received.

According to this certificate of incapacity for work, she was taken off sick to the exact day until the expiry of the notice period.

The employer then refused to continue to pay her wages because it doubted the certificate due to the circumstances. The employee won in the first two instances. In the final instance, however, the Federal Labor Court ruled in favor of the employer.

How did this ruling come about? What does it mean for employers and employees? Are online sick notes valid and what applies in times of the Corona pandemic?

Doubts about certificates of incapacity for work

Precisely fitting sick leave after dismissal shakes evidential value of certificate

The “precisely fitting” sick note also cast serious doubt on the employee’s incapacity for work for the judges. In the further course of the proceedings, the employee did not succeed in proving her inability to work by other evidence. The employer was right to refuse continued payment of wages.

What does this ruling mean for employers and employees?

• This case law is interesting for employers because the certificate of incapacity for work is often seen as an insurmountable bulwark in labor court proceedings, the evidentiary value of which cannot be shaken by the employer. This is often the case even if it is obvious to the employer that the sick leave certificate was only faked by the employee in order to avoid having to appear at the workplace.
• It is important for employees to know that if they have serious doubts about the legitimacy of their certificate of incapacity for work, they may have to prove their incapacity for work in court by other means of evidence. In particular, the evidence can be provided by questioning the attending physician after he or she has been released from the duty of confidentiality. If doubts then remain, these shall be borne by the employee.

Is an online sick note sufficient?

Some start-ups now also offer so-called online sick notes, where the employee receives a sick note without having had any prior personal contact with a doctor.

But be careful: If the employee submits a certificate of sick leave that has only taken place on the basis of such an online exchange with the doctor, the employer can cast doubt on the certificate.

Other rulings confirm that when medical certificates are issued, there must be direct contact between the doctor and the patient. Without this personal contact, no doctor could determine whether the patient was actually suffering from the illness he himself suspected or claimed. For the normal case, therefore, direct personal contact with the patient could not be dispensed with for the issuance of a sick note, even in the case of minor illnesses

Corona special rules

Due to the current special situation caused by the pandemic, however, the Joint Federal Committee (G-BA) extended the Corona special rules for doctor’s visits for minor respiratory infections once again on 16.09.2021 until 31.12.2021. Sick notes, medically prescribed services and telephone consultations are also possible by telephone for this clinical picture. It remains to be seen whether this will have an effect on the case law on the evidential value of the certificate of incapacity for work.