Sick Leave Notification on Bridge Days: What Employers Should Consider When Doubting an Employee’s Incapacity for Work

Incapacity for Work With and Without a Medical Certificate

As a general rule, employees must inform their employer as soon as possible of their incapacity for work and its expected duration. Under Section 5 (1) Sentence 2 of the German Continuation of Remuneration Act (Entgeltfortzahlungsgesetz – EFZG), a medical certificate of incapacity for work (“Arbeitsunfähigkeitsbescheinigung”) is only required starting from the fourth calendar day of incapacity for work, unless an earlier obligation to submit such a certificate has been contractually or operationally agreed.

Doubts About Incapacity for Work and When They May Be Justified

For a long time, the case law of the Federal Labour Court (Bundesarbeitsgericht – BAG) was considered favourable to employees with regard to the evidentiary value of a medical certificate. However, in its judgment of September 8, 2021 (5 AZR 149/21), the BAG initiated a change in jurisprudence. The case concerned an employee who had resigned and presented a sick leave notification on the same day, precisely covering the remainder of the notice period. The BAG held that such circumstances may be sufficient to undermine the high evidentiary value of a medical certificate.

While a comprehensive assessment of all circumstances is required in each individual case, the following indicators may be suitable to call the validity of a medical certificate into question:

• Employer-initiated terminations: Temporal proximity between receipt of the notice of termination by the employee and sick leave notification, provided that additional circumstances such as a coincidence in time between the notice period and the duration of the certified incapacity to work also apply. (BAG, judgment of December 13, 2023 – 5 AZR 137/23).
• Violations of the Incapacity for Work Directive: Telephone diagnoses or video consultations without sufficient prior examination as well as excessive certification periods (BAG, judgment of June 28, 2023 – 5 AZR 335/22).
• Sick leave notification following rejected vacation requests: Temporal proximity between a rejection of vacation and a subsequent sick leave notification, especially if this pattern occurs repeatedly (BAG, judgment of January 15, 2025 – 5 AZR 284/24).
• “Doctor hopping”: Several short-term sick leave certificates from doctors in different regions.
• Repeated incapacity for work following vacation (BAG, judgment of February 20, 1985 – 5 AZR 180/83).
• Reporting incapacity for work immediately after a warning (“Abmahnung”) or unwelcome instruction

The Federal Labor Court has not yet made a final decision on whether repeated incapacity for work on “bridge days” can also be an indication that undermines the probative value of the sick leave certificate. The trend is clear: the previously cautious approach towards scrutinising medical certificates is being abandoned.so that the BAG itself was unable to rule on the merits.

What Employers Can Do When Doubts Arise

If initial doubts arise about an inability to work, the employer may first seek a personal conversation. While employees are not obliged to disclose information about the nature of their illness, an open dialogue may help to plausibly explain the circumstances.

If there are objective indications and a reasonable suspicion that speak against incapacity for work, the employer may take the following measures:

• Withholding remuneration for the day(s) on which the inability to work is in question;
• Issuing a warning (“Abmahnung”) or, in the event of recurrence and a prior warning, terminating the employment relationship;
• Reporting the case to the health insurance provider to initiate a review by the Medical Service (“Medizinischer Dienst”) pursuant to Section 275 of the German Social Code, Book V (Fünftes Sozialgesetzbuch – SGB V);
• Reporting suspected medical misconduct to the Medical Association (“Ärztekammer”).

Conclusion: Employers Are Entitled to Have Doubts – and to Act on Them

Sick leave notifications around public holidays, particularly after rejected vacation requests, should be questioned as to whether they are actually based on incapacity for work. Current case law demonstrates that the evidentiary value of a medical certificate is no longer sacrosanct. Employers may take action in the event of specific anomalies – be it through internal review, involvement of the health insurance provider or through consequences under employment law. In order to avoid repeat cases, the employer may, in the event of justified doubts about the incapacity for work, refuse to pay remuneration for the day of the suspected incapacity for work until a conclusive explanation has been provided by the employee. In addition, the employer may require the employee to submit a sick leave certificate from the first day of incapacity for work (Section 5 (1) sentence 3 EFZG). It is crucial that any suspicions are objectively justified and that any measures taken are proportionate.

Foto: Angelov – stock.adobe.com