By Frederik Mölle, Firm: Kliemt.de

This article sets out the law in Germany on dealing with employees’ absence from work as a result of sickness and how employers can respond if they believe an employee has made an untruthful claim to be ill.

As the days become shorter, the temperature drops, more rain falls and the sick rate rises. At this time of year, an issue that is relevant all year round becomes much more prominent for many employers: dealing with incapacity to work as a result of illness.

As a rule, employees are actually incapacitated for work and report this to the employer in the proper manner, if necessary also presenting a certificate of incapacity for work. However, in some cases, employees also inaccurately or untruthfully claim to be unable to work because they are sick. The following is a brief summary of how an employer can behave in this context.

Notification of sickness

If an employee is incapacitated for work, he or she must inform the employer immediately, together with the expected duration of the incapacity for work. This usually requires a telephone message (an email is also possible, but not to an address that is only consulted irregularly). This must be done at the beginning of working hours on the first working day of illness, or at a minimum, during the first working day. If the incapacity to work began on a previous non-working day (e.g. weekend or part-time employment) and it was already foreseeable that the sick employee would not be able to work on his or her next working day, the employee must report the incapacity to work during the first day of illness and cannot wait until the first working day to give this notification. The employee is obliged to do so, even in the absence of an explicit provision in the employment contract. If the employee does not comply with this obligation, the employer can base a warning on this or, in where it is repeated, also terminate his or her employment on the basis of this conduct.

The certificate of incapacity for work

As a rule, a certificate of incapacity for work is only required after an incapacity for work that lasts longer than three calendar days (not working days). It must be presented on the following working day (not a calendar day). The employee must submit the certificate of incapacity for work earlier if the employer requests it. From the employer's point of view, this is usually sensible if an employee is frequently ill for up to three days and these illnesses are concentrated around days off anyway (e.g. the weekend or ‘bridge’ days). The employer can ask the individual employee to submit a certificate of incapacity to work unilaterally and without involving the works council. If, however, the employer makes general arrangements to request certificates of incapacity for work early (e.g. by use of appropriate clauses in standard form work contracts), then the work council has a compelling right of codetermination over whether and how this is implemented (s87 exp. 1 No. 1 Works Constituion Act BetrVG).

If an incapacity for work certificate is presented, it must meet the content requirements: if not, the employer can reject the certificate reject and require a compliant one. The work incapacity certificate must give the name of the person concerned, as well as the duration of the incapacity to work. This information should be present on the standard forms usually used by physicians.

Evidential value of the certificate of incapacity for work

In principle, a duly issued certificate of incapacity for work has high evidential value. This means that when a certificate of incapacity for work is issued, there is an actual presumption that the employee was unable to work due to illness. However, this presumption can also be challenged.

There may be grounds to criticise the high probative value given to a certificate of incapacity for work. Labour law practice shows that certificates of incapacity are, partially, a service product given by doctors. This is clearly shown by certificates issued ‘precisely’ (e.g. where the end of incapacity for work exactly matches the end of the pay continuation period) or by the recently developed ‘business models’ of online sick leave or sick leave via WhatsApp. Despite this, employers have to work with the high proof value of the work incapacity certificate in choosing whether to challenge one. The mere assumption that the employee is feigning illness is not sufficient. Rather facts that justify serious doubts are required.

Case law has determined a set of situations when serious doubts can be considered to be present. A classic example is the absence on sick leave of the employee because, or when, no leave is granted. But also very frequent short illnesses around the weekend or on ‘bridge’ days can justify serious doubts about an employee’s inability to work. The same applies to backdating of acertificate of incapacity for work by the doctor. The online sickness certificates already mentioned above are regularly subject to serious doubts, as there is no examination required by the doctor issuing the certificate. So, if the employer has evidence that it is an online sick note (e.g. sick note of a maximum of three days by a doctor far away from the place of residence with the certificate of incapacity for work only presented in digital form), the employer does not have to accept it as the evidentiary value of the certificate is challenged.

Scope for the employer to take action

If an employer has doubts about an employee’s genuine incapacity to work, it can require the sickness insurance fund to call in the medical service to get confirmation of the incapacity to work.

If there is no proper certificate of incapacity for work or if there are serious doubts about any certificate presented, the employer can refuse to continue to pay the employee’s wages as long as there is no proper certificate of incapacity for work. If, for a certain period of time, the employee is unable to present a certificate at all, or only a certificate which raises significant doubts about the incapacity to work, the employer may refuse payment entirely for this period of time. However, in this case the employer exposes itself to the (procedural) risk that the elimination of the evidential value of the certificate of incapacity to work is regarded as insufficient or that the employee succeeds in proving that he or she is incapable of working (in particular by questioning the attending physicians).

Furthermore, it is also possible to issue a warning and, in this happens again, issue the employee with an ordinary (or in exceptional cases also extraordinary) notice of termination based on failure to submit a proper certificate of incapacity for work or on his or her unjustified absence from work.