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03.05.2024 | KPMG Law Insights

Doubts about inability to work? What employers can do

The certificate of incapacity for work (AU certificate) serves as proof of incapacity for work due to illness. However, only if the certificate meets certain requirements of the Incapacity for Work Directive. If this is not the case, their evidential value may be shaken. This was confirmed by the Federal Labor Court (BAG) in its ruling of June 28, 2023 (5 AZR 335/22) was decided.

From time to time, employers have doubts about a claimed incapacity for work. This was also the case in a case that had to be decided by the BAG. After receiving notice of termination, the employee called in sick until the end of his employment relationship.

The BAG ruled: By submitting a certificate of incapacity for work, employees initially fulfill their obligation to provide evidence of their incapacity for work. If the employer wishes to dispute the inability to work, it must present and prove factual circumstances that cast doubt on the illness. Such doubts may also arise from the certificate itself. If the certificate violates the incapacity for work guideline of the Federal Joint Committee (AU guideline), this can undermine the probative value according to the BAG ruling. However, a distinction must be made: Violations of formal requirements, which are primarily of significance under cash register law, are irrelevant for the value of evidence. Violate the
However, if the certificate of incapacity for work contains provisions that refer to medical findings for the reliable determination of incapacity for work, this could call into question the evidential value of the certificate.

Violations of the incapacity for work directive can give rise to doubts

Requirements for the certificate of incapacity for work are regulated in § 4 and § 5 of the Incapacity for Work Directive. These include, among others:

  • The necessity of a prior medical examination (§ 4 Para. 5 Sentence 1 AU Directive). This can take place either in person or via video consultation. However, strict requirements apply to the latter.
  • The incapacity for work is not certified on the form provided for this purpose.
  • As a general rule, AU certificates may not be backdated. Backdating the start of the incapacity for work to a day prior to the assessment is only permitted in exceptional cases and only up to three days.
  • In principle, incapacity for work may only be certified for a maximum period of two weeks, in exceptional cases up to one month in advance.
  • According to § 5 para. 1 p. 4 and 5 of the AU Directive must be complied with. However, this is usually not recognizable for the employer, as he only receives a copy without diagnostic information. However, if employees voluntarily submit a copy with a diagnosis, this information can undermine the probative value.
  • The sick leave certificate must be issued at all times, including weekends and non-working days. Gaps in the incapacity to work, for example for days off work or vacation days, would be conspicuous.

If in doubt, contact your health insurance company

If the evidential value of the certificate of incapacity for work is shaken, the employee must demonstrate and prove by other means that he or she was unfit for work during the relevant period, for example by means of a certificate from the doctor treating him or her. Otherwise there is no entitlement to continued payment of remuneration.

If the employer decides not to continue to pay remuneration on the basis of his or her doubts, he or she should inform both the employee and the health insurance fund immediately and inform them of the specific concerns. This is because employees may be able to claim sick pay for periods for which the employer refuses to continue to pay remuneration until their entitlement has been clarified. However, if it turns out that the refusal to continue to pay wages was unjustified, the health insurance fund can take recourse against the employer.

Examination by the medical service

If the employer doubts the incapacity to work, it can also request an examination by the medical service, § 275 SGB V. According to § 275 para. 1a are recognized reasons for doubt:

  • The insured person is incapacitated for work conspicuously often or conspicuously often only for short periods.
  • The start of incapacity for work often falls on a working day at the beginning or end of a week.
  • The incapacity for work was determined by a doctor who has become conspicuous due to the frequency of sick leave certificates issued.

However, the cases mentioned are only standard examples. A review by the Medical Service can also be considered in other cases where there are doubts about the accuracy of a certificate of incapacity for work, for example:

  • in the case of sick leave after termination (BAG, judgment of 13.12.2023 – 5 AZR 137/23)
  • in the event of sick leave after prior notice of incapacity to work, for example in the event of a dispute over a vacation request (BAG, judgment of June 17, 2003 – 2 AZR 123/02).


The decision of the BAG specifies the legal requirements for the sick leave certificate. If the certificate does not comply with the medically relevant requirements of the Incapacity for Work Directive, this can undermine its probative value. Employers thus have a further means of challenging dubious sickness certificates and can, in justified cases, refuse continued payment of remuneration or demand other proof of incapacity for work.



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