Littler | Medical Certificate from Day One: What Is Changing, What Remains the Same

In early July 2026, the coalition committee of the CDU/CSU and SPD announced plans to bring forward the obligation to submit a certificate of incapacity for work from the first day of illness and to abolish telephone-based certification of incapacity for work. At first glance, this may sound like a significant tightening of obligations for employers and employees alike. In reality, however, less is likely to change than expected – the real challenges lie in the details, which will only be clarified once a draft bill is published.

For Now, Only a Political Announcement – Section 5 EFZG Continues to Apply

The basis for the announcement is the “Program for Growth and Employment” published on July 2, 2026. No draft bill has yet been presented; Federal Chancellor Merz has announced that the legislative process is to be completed by the end of 2026. Until then, Section 5 EFZG remains unchanged.

At the press conference on July 2, 2026, Mr. Merz expressly confirmed that businesses should be able to deviate from the new rule by individual agreement, works agreement, or collective bargaining agreement. Whether such deviations will be permissible only in favor of employees – for example, by retaining the three-day period – or in both directions will only become clear once the draft bill is available. For the time being, employers therefore do not need to take immediate action.

What many do not know: Employers can already require proof from day one

The planned reform would turn an existing employer prerogative into the statutory default rule: under Section 5 para. 1 sentence 3 EFZG, employers are already entitled to require a medical certificate earlier than after three days – including from the first day of illness and without any specific reason. The only limits are arbitrary or discriminatory instructions.

For employees covered by statutory health insurance, the duty to provide proof has operated differently since the mandatory electronic certificate of incapacity for work (eAU) was introduced on January 1, 2023: employees are no longer required to submit a paper certificate, but rather to have their incapacity for work medically certified. The medical practice transmits the data, and the employer retrieves it from the health insurance fund.

Open implementation issues – what the legislation still needs to address

Several practical questions remain unresolved in the absence of a draft bill. What qualifies as the “first day” – the first calendar day or the first working day missed due to illness? This is crucial for shift models, weekends, and public holidays. Which options for retroactive certification or video consultations will remain available once telephone-based sick leave certification is abolished? And how medical practices are expected to cope with the anticipated influx if every sick employee suddenly needs a certificate from day one is another issue that remains to be seen.

There is also a terminological inconsistency: the coalition decision refers to a mandatory “submission” of the certificate of incapacity for work – although, as described above, employees covered by statutory health insurance have not submitted anything since 2023. How a statutory submission requirement to submit can be reconciled with the existing eAU procedure remains unclear.

No proof = no pay? Not automatically

Employees who are ill are entitled to continued remuneration – regardless of whether they submit a certificate. The decisive factor is solely whether incapacity for work actually existed (Section 3 EFZG). In cases of doubt, the burden of proof lies with the employee.

For employers, this means – already today – that an unsuccessful eAU retrieval alone is not sufficient to suspend continued remuneration. It may be due to a technical error, or it may indicate that the employee did not in fact consult a physician. Section 7 EFZG was drafted for the paper-based system and does not provide a clear answer. This gap already exists today – and the reform would present an opportunity to finally address it.

Practical implications:

The announced and widely discussed obligation to provide proof of incapacity for work from day one may sound like a tightening of obligations – but it will likely merely elevate an existing employer's discretionary right to the statutory standard. What will be decisive is how far the announced derogation clause will extend: deviations by individual employment contract, works agreement, and collective bargaining agreement are intended to remain possible. Until the draft bill is published, it is worth using the situation as an opportunity to review the company’s existing agreements.

Specifically, employers should consider the following:

Review contracts and policies: Are employees’ notification and proof obligations in the event of illness clearly regulated? Is there already a requirement to provide a medical certificate from day one?
Define a strategic position: Does the company want to require a certificate from the first day as a general rule, or only in specific circumstances – for example, in cases of frequent short-term absences?
Observe co-determination rights: Any employer wishing to introduce or tighten a company-level requirement to provide a certificate from the first day already now must involve the works council (Section 87 para. 1 no. 1 BetrVG). Once the legislation enters into force, co-determination will no longer apply to the “whether” – but it will continue to apply to the design of any exceptions and processes.

Until the draft bill is available, the rule is therefore: better to wait and see – anyone who acts prematurely may have to readjust at a later stage.

As of July 16, 2026