Holidays, sun, sea, and suddenly ill? “Extending” the holiday with certificates of incapacity for work is a negative trend among employees. Employer representatives are requesting stricter controls, such as home visits or the loss of pay on the first day of illness. The Federal Labor Court (BAG) recently clarified once again under which circumstances the evidential value of a certificate of incapacity for work from abroad can be questioned (Federal Labor Court ruling of 15 January 2025 – 5 AZR 284/24). We explain the significance of this decision and what employers and HR managers should look out for when receiving certificates of incapacity for work.
Legal introduction to the topic
If an employee becomes sick, they are generally obliged to submit a certificate of incapacity for work to their employer in accordance with § 5 (1) 2 of the German Continued Remuneration Act (EFZG). This usually applies if the inability to work lasts longer than three calendar days. However, an employer may set different rules. The certificate of incapacity for work must clearly state that the employee is unfit for work and is unable to perform their contractual duties due to illness. Consequently, it is not sufficient to simply submit a certificate of “illness”. In addition, the name of the employee, the attending physician as the issuer, and the expected duration of the incapacity for work must be noted in the certificate.
A certificate of incapacity for work generally has a high evidential value. It is primarily the employer’s obligation to refute this evidential value. However, reasonable doubts – whether about the certificate itself, the information provided by the employee, or other aspects – can contest the evidential value. The consequence of such contestation is a change of the burden of proof: The employee now has to prove that they really were unfit for work.
Previous case law on the contestation of the value of evidence
In the past, the Federal Labor Court has often ruled on the evidential value of certificates of inability for work and has developed several representative case groups in which this evidential value is regularly successfully challenged:
Announcement of illness (Federal Labor Court ruling of 4 October 1978 – 5 AZR 326/77)
In one of the earliest rulings from 1978, there was an allegation that the employee had announced a so-called “sick party”. Such suspicion arises if the employee announces that they will soon be unable to work in response to certain actions by the employer or colleagues. Such a statement raises considerable doubt as to whether the announced illness has occurred and regularly undermines the evidential value of the certificate of incapacity for work submitted.
Activity for a competitor (Federal Labor Court ruling of 29 June 2017 – 2 AZR 597/16)
A judgment from 2017 concerned an employee who was working for a competitor company during his alleged incapacity for work. He obtained a certificate of incapacity for work and presented it to his employer. This not only undermines the evidential value of the certificate of incapacity for work, but also regularly constitutes an important, extraordinary reason for termination of employment by the employer.
Incapacity for work after resignation (Federal Labor Court ruling of 8 September 2021 – 5 AZR 149/21)
A case from 2021 concerned an employee who resigned from her job and then submitted a certificate of inability for work dated that day, which lasted exactly until the end of the notice period. In the case decided by the Federal Labor Court, the employer was able to contest the evidential value of the certificate of incapacity for work by showing that it covered exactly the remaining term of the employment after the employee’s resignation. In the opinion of the Federal Labor Court, the congruence of the notice period and the sick period in the certified incapacity for work gave rise to serious doubts about the certified incapacity for work.
Sickness on summer vacation – the facts of the new case
The current Federal Labor Court ruling of 15 January 2025 (5 AZR 284/24) concerns a warehouse worker who had been employed by his employer for 22 years and spent his summer vacation in Tunisia from 22 August to 9 September 2022. Towards the end of his vacation, he became sick, which is why he presented his employer with a certificate of incapacity for work issued by his Tunisian doctor on 7 September 2022. This diagnosed him with severe sciatic pain. As a result, the employee was prohibited from moving and traveling for 24 days and prescribed absolute bed rest. The employee booked his ticket home for around three and a half weeks later, immediately after receiving the certificate. The warehouse worker started his return journey on 29 September 2022, during the ordered rest period. This was the 4th time in several years that the employee had become sick during his vacation. Each year, the employee submitted certificates of incapacity for work during, shortly before, or after the end of the vacation.
The employer then refused to continue to pay him for the sick period and reduced his remuneration accordingly. The employee filed a claim for continued remuneration.
Munich Regional Labor Court ruled in favor of the plaintiff
The Munich Regional Labor Court initially confirmed the warehouse worker’s claim in its ruling of 16 May 2024 – 9 Sa 538/23. The evidential value of the certificate of incapacity for work at issue was not contested, and the employee was entitled to continued remuneration for the sick period.
The Regional Labor Court emphasized that it is irrelevant in which country the certificate of incapacity for work was issued. A certificate from another European or non-European country has the same evidential value as one from Germany if it shows that the foreign doctor has differentiated between a mere illness and the incapacity for work.
Furthermore, the individual aspects of the case presented are each not sufficient to challenge the evidential value.
Federal Labor Court demands a comprehensive overall assessment of all individual aspects
The Federal Labor Court decided the case differently and overturned the ruling of the Regional Labor Court. The core statement of the ruling is the necessity of carrying out a comprehensive overall assessment of all individual circumstances of the case. In particular, the Federal Labor Court criticized the isolated evaluation of the individual aspects in the previous court instance, each one not sufficient to contest the evidential value.
The inability to work for more than three and a half weeks without a further visit to the doctor, the early purchase of the ticket for the journey home, and ultimately the fourth repetition of this procedure are, taken as a whole, likely to create considerable doubts on the validity of the certificate of inability for work. This could lead to the evidential value being challenged and to a shift in the burden of proof.
The Regional Labor Court must therefore consider all these individual aspects in an overall view to assess the evidential value of the certificate of incapacity work submitted.
With this ruling, the Federal Labor Court confirms and continues earlier case law on the change of the burden of proof to the effect that individual aspects that are not sufficient in themselves can, in combination with other facts, justify a change of the burden of proof. The Federal Labor Court confirms that serious doubts can contest the evidential value of a certificate of incapacity for work.
Consequences and practical implications of the ruling for employers
Employers and HR managers can gain important insights from the new Federal Labor Court ruling. In particular, certificates of incapacity for work that are submitted during or directly after vacations should be checked carefully. Attention should be paid to the following aspects:
- Is there a direct time connection between the end of the leave and the beginning of the incapacity for work?
- Is an incapacity to work repeatedly reported directly after a vacation?
- Does the employee’s behavior before or after the certificate was issued speak against the existence of incapacity for work or illness? Are there any anomalies?
- Have all requirements set out in § 5 of the German Continued Remuneration Act for the certificate of incapacity for work been met?
These principles are not limited to illnesses during vacations. They apply generally to all certificates of incapacity for work, whether from abroad or not, and can be used to contest the evidential value of the certificate.
