Doubts about sickness certification - When may an employer refuse to continue paying remuneration
If a certificate of incapacity for work (Arbeitsunfähigkeit, AU) is submitted subsequent to the termination of an employment relationship with notice, or immediately after an application for leave extension has been rejected, then, in practice, doubts frequently arise. The probative value of an AU certificate is generally very high. However, in two recent rulings the labour courts have now deviated from this principle.
Cessation of the continued payment of remuneration in the case of sickness
In both cases, each claimant had provided their employer with an AU certificate. Each employer had ceased to continue paying remuneration in the case of sickness. They did not believe that the incapacity for work existed.
Case 1
In a case that was decided by the state labour court in Lower Saxony on 19.11.2025 (case reference: 8 SLa 372/25, appeal pending before the Federal Labour Court (Bundesarbeitsgericht, BAG), case reference: 5 AZN 71/26), an employee had called in sick and, at the same time, handed in her notice. A doctor had certified her incapacity for work up to the end of the employment relationship.
Case 2
The case that was decided by the labour court in Heilbronn on 27.3.2026 concerned an employee who - as already in the previous year - had provided an AU certificate after his application for leave extension had been turned down.
In both cases, the courts viewed the cessation of the continued payment of remuneration as being justified and, therefore, did not recognise an entitlement to the continued payment of remuneration. Proof of incapacity for work due to sickness can generally be provided by submitting an AU certificate issued by a doctor (Section 5(1) sentence 2 of the Continued Payment of Wages and Salaries Act [Entgeltfortzahlungsgesetz, EFZG]). That is why Section 7(1) no.1 EFZG provides that submitting this certificate is sufficient to remove the employer’s right to refuse payment. Although, in both cases the courts viewed the probative value of the AU certificates that were provided as having been undermined.
New ruling on the probative value of an AU certificate
The argument of the state labour court in Lower Saxony was based on the overall circumstances. In the opinion of the court, an AU certificate is not legal proof of an incapacity for work that actually exists. In cases of justifiable doubt, the employer is not required to provide evidence to the contrary that incapacity for work does not exist. As a general rule, the employer will have no knowledge of the causes of the illness and will only able to undermine the probative value of the AU certificate to a limited extent. Therefore, indicative evidence would be sufficient. In the case of a termination of employment with notice, the probative value of the AU certificate could be undermined if the employee falls sick immediately after receipt of the notice of termination and, based on the overall circumstances of the specific case under assessment, there would be indicative evidence that justifies the doubts about the existence of the incapacity for work.
Whether the claimant fell sick first and then made up her mind to hand in her notice, or whether it was the other way round, or whether both events occurred at exactly the same time was legally irrelevant. The serious doubts about the AU certificate were based on the fact that the claimant became incapacitated for work once it became clear that the employment relationship was going to end and that she remained so until the end of the notice period. The testimony of the attending doctor was not useful. She had not personally examined the claimant, although under Section 7(5) of the German Incapacity for Work Guideline she would have been required to do so. Therefore, there could be no question of a competent and reliable medical assessment of the incapacity for work.
The labour court in Heilbronn likewise viewed the probative value of the AU certificate as having been undermined. The AU certificate corresponded to the time period by which the leave was supposed to have been extended. Moreover, the incapacity for work was only reported a few hours prior to a planned work assignment. Here, on top of that, the claimant had already in the previous year reported that he was incapacitated for work for a week after his vacation and had provided the appropriate AU certificate. In this respect, the same sequence of events occurred two years in a row. The court was likewise not persuaded by the testimony of the claimant’s general practitioner who could neither remember the claimant, nor had he documented a detailed medical report.
If the probative value of the AU certificate has been undermined then the burden of proof will lie with the employee
If the probative value of the AU certificate has been undermined, then the situation with respect to the burden of presentation and of proof will revert back to the one before the certificate had been submitted. It will then be up to the employee to present specific facts and, if necessary, to provide proof thereof and from which it would be possible to conclude that there was an existing medical condition. This would necessitate a substantiated presentation, for example, of the illnesses that were present, the health-related limitations that existed and the health protection measures or medications that were prescribed by the doctor. The employee must therefore describe, at least in layman’s terms and with regard to the entire period of continued payment of remuneration, the specific health impairments that existed and the effects they had had on their ability to work.
