Under the Continued Remuneration Act, employees must in general provide evidence of their inability to work by means of a medical certificate (e.g. electronic certificate of incapacity for work) after three days of illness at the latest. However, employers are allowed to demand proof at an earlier point in time.

The question of whether the works council has a right of co-determination in such cases has now been addressed by the German Federal Labor Court in a decision dated November 15, 2022.

In the case in question, an employer had repeatedly ordered individual employees to submit a sick slip on the first day of illness already. The works council claimed to have a co-determination right with respect to such orders, arguing that such orders had to be considered measures of the orderly conduct of the employees within the meaning of Sec. 87 para 1 no. 1 of the Works Constitution Act. The works council’s application was unsuccessful. The German Federal Labor Court stated that in principle orders regarding the submission of sick slips could result in co-determination rights applicable to measures of orderly conduct. However, such co-determination rights would apply only if in fact such orders were to be considered collective regulations.. In contrast, orders related to individual cases and based on individual peculiarities of the employment relationship only would not be subject to co-determination.

In the case at hand, the employer had demanded early submission of sick slips in 17 cases only since 2018. In the opinion of the court, those few cases were not comparable to each other. Even similarities of the content or form of the individual orders did not result in the orders being considered a collective regulation.

Ultimately, the court held that there was a lack of collective reference, which would have been a mandatory prerequisite for a co-determination of the works council. Employers therefore have a certain amount of discretion, but may always wish to carefully examine the individual circumstances on a case-by-case basis in order to avoid infringements of works councils’ co-determination rights.



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