Wind of Change - Are medical sick leave certificates still untouchable?

High sickness rates present significant challenges for employers. Previously, if employers had doubts about an employee's actual incapacity for work, they faced significant challenges due to the high probative value of the certificate of incapacity for work. However, recent developments in case law offer new opportunities to address cases of suspected faked inability to work more effectively. The following article outlines the cases in which case law has recently deemed the evidential value of a certificate of incapacity for work to have been undermined.

Basic Considerations on the Probative Value of Sick Leave Certificates
It is the employee's responsibility to demonstrate that they are unable to work. The employee can provide this initial evidence by submitting the sick leave certificate. In the event that the employer has reservations regarding the employee's inability to work, it is the responsibility of the employer to present evidence that calls into question the probative value of the sick leave certificate. It is sufficient for the employer to present reasons that seriously challenge the accuracy of the sick leave certificate. If these reasons are deemed plausible, it is for the employee to substantiate their claim of incapacity for work. It should be noted that current case law is dynamic and subject to frequent change. The following case categories therefore represent an interim status and are intended to provide a general overview, rather than a conclusive list.  

No Continued Payment of Salary in the Event of a “Precisely Fitting” Sick Note
The change in case law is based on the ruling of the Federal Labor Court (Bundesarbeitsgericht, BAG) dated 8 September 2021 (5 AZR 149/21). The court ruled that the probative value of the sick leave certificate may be called into question if the sick leave period coincides with the notice period. In this particular case, the employee had also provided the employer with a sick leave certificate along with the notice of termination, which covered the period up to the last day of the notice period. This temporal coincidence was sufficient for the Federal Labor Court to question the value of the evidence. In a decision dated 18 September 2024, the court confirmed this case law (5 AZR 29/24) recently.

“Sick” until the Commencement of the New Job
The Federal Labor Court ruled on a comparable case in 2023 (judgment dated 12 December, 5 AZR 137/23). The issue at hand was that the employee initially only submitted a sick leave certificate for five days. After the employee submitted the sick leave certificate, the employer terminated the employment contract. The employee then submitted two subsequent sick leave certificates, which coincidentally ended the terminated employment relationship. One day later, the employee began a new employment relationship with another employer. The court determined that the probative value of the two subsequent certificates of incapacity for work was diminished due to the temporal coincidence between the termination and the incapacity for work, given that the termination notice was issued.

Inconsistencies in the Sick Leave Certificate and Sick Note following Unwelcomed Work Instructions and Rejection of a Vacation Request
In a ruling by the Lower Saxony Higher Labor Court (Landesarbeitsgericht, LAG), a number of factors contributed to the initial evidence presented in the sick leave certificate being deemed questionable (cf. ruling dated 31 May 2024, 14 Sa 618/23). In this case, the sick note was issued shortly after the employee's vacation request was rejected and an unwelcome work instruction was issued. Additionally, the sick note coincided precisely with the period preceding a planned sailing vacation, which the employee commenced concurrently with the termination of the employment relationship due to dismissal. Furthermore, the employee's stated conditions were not aligned with the diagnoses on the sick leave certificates, particularly the unspecific ICD code. Additionally, there was no specific medical diagnosis provided after seven days, as required by the German Incapacity for Work Directive (Arbeitsunfähigkeits-Richtlinie) in the version applicable in May 2023.

Too Lengthy Sick Note and Other Errors in the Sick Note Certificate
A further judgment by the Lower Saxony Higher Labor Court (6 Sa 416/23) dated 18 April 2024, addressed similar violations of the German Incapacity for Work Directive. In this case, the employee's inability to work was certified for a period exceeding two weeks, contrary to the Incapacity for Work Directive. However, there was insufficient evidence to demonstrate that this was medically necessary. The medical certificate did not provide a concrete description of the intensity and nature of the employee's symptoms, nor did it justify the length of the incapacity for work. Furthermore, the employee did not sufficiently substantiate which specific health restrictions would have prevented him from carrying out his work. General assertions such as a gastrointestinal infection were not sufficient to conclusively demonstrate the incapacity to work.

No Medical Specialist Consulted – No Medication Taken
The Higher Labor Court of Mecklenburg-Vorpommern (ruling from 7 May 2024, 5 Sa 98/23) also established important evidence in a recently published decision. In the case, the terminated employee's subsequent sick notes not only covered the entire period of the notice period, but extended beyond it. Nevertheless, the employee commenced a new job immediately following the termination of the previous employment. Despite medical advice to the contrary, the employee did not consult with a specialist or obtain the prescribed medication. The court did not consider this to be sufficient grounds for substantiating the employee's inability to work. On the contrary, this indicated that the employee was at best experiencing only minor symptoms.

Behavior that is Detrimental to Recovery
While there are no fundamentally new developments, there is nevertheless important evidentiary support for cases where employee behavior is detrimental to recovery. The Higher Labor Court of Berlin-Brandenburg (cf. ruling dated 5 July 2024, 12 Sa 1266/23) recently addressed such case. In the decision, the employee on sick leave participated in handball matches as a player and referee. This was deemed sufficient for the court to question the reliability of the sick leave certificate.

The case groups demonstrate the diverse range of cases with regard to the probative value of the certificate of incapacity for work. Furthermore, these examples demonstrate the importance of seeking legal advice, given the level of detail involved. It is crucial to conduct a thorough individual case assessment, considering all circumstances, to successfully defend against a claim for withheld pay or to reclaim overpayments. On a positive note, the courts have established that the probative value of the sick leave certificate is no longer accepted in the event of irregularities without contradiction. This effectively counters misuse.