The governing coalition plans to significantly tighten the rules regarding sick leave. In the future, employees will be required to provide a doctor’s note certifying their inability to work as early as the first day of illness. In addition, sick leave requests made by phone will be eliminated, and penalties for issuing false medical certificates will be stricter.

Reporting sick and a doctor’s note are not the same thing

Anyone who is unable to work due to illness must notify their employer immediately. Employees should, if possible, inform their employer before the start of the workday that they are unable to work and how long the illness is expected to last.

This sick leave notification should be distinguished from the medical certificate of incapacity for work, or “AU” for short. The sick leave notification is submitted by the employee. With the AU, a doctor confirms that the employee is unable to perform their job for health reasons.

As a general rule, the employer does not need to be informed of the diagnosis.

When is a certificate of incapacity for work required?

According to Section 5 of the Continued Pay Act (EntgFG), the following currently applies: If the inability to work lasts longer than three calendar days, the medical certificate must generally be submitted no later than the following workday.

For example, if an employee falls ill on Monday and is still unable to work on Thursday, he or she must provide a doctor’s note by Thursday at the latest.

However, under current law, employers are already permitted to require that a medical certificate of incapacity for work be provided starting on the first day of illness. Such a provision may be set forth in the employment contract, a company agreement, or a specific instruction from the employer.

Employees covered by statutory health insurance generally no longer need to submit a paper certificate to their employer. The employer retrieves the data from the electronic sick leave certificate from the health insurance provider. However, the obligation to report sick in a timely manner still applies.

What is expected to change as a result of the reform?

According to current plans, a certificate of incapacity for work will generally be required starting from the first day of illness. The current statutory waiting period of three calendar days would thus be eliminated. Based on announcements made so far, company-specific or individual exceptions may still be permitted.

For employers, the change could make it possible to monitor sick leave earlier. At the same time, human resources departments would have to ensure that electronic sick leave data can be reliably retrieved and processed even for short-term illnesses.

For employees, the reform would mean that even in the case of a one-day illness, a visit to the doctor would generally be required. This could lead to additional hassle, particularly in the case of sudden but short-lived symptoms.

Will the practice of issuing sick leave certificates over the phone be eliminated?

The coalition also plans to eliminate the option of obtaining a sick note over the phone. Currently, this is possible under certain conditions, particularly for patients who are already known to the doctor’s office and have only mild symptoms.

Abolishing this requirement would not necessarily mean that every patient would have to appear in person at the doctor’s office. Depending on the condition, video consultations might still be an option. The key factor will be what provisions the final text of the law or guidelines actually includes.

When is a false medical certificate a criminal offense?

Under Section 278 of the Criminal Code (StGB), a physician is liable to criminal prosecution if he or she knowingly issues an incorrect medical certificate with the intent to deceive in legal transactions. Currently, the penalty is a fine or imprisonment for up to two years.

Not every medical misjudgment automatically constitutes a criminal offense. In particular, the deliberate issuance of a false medical certificate is a criminal offense. Anyone who knowingly uses a false medical certificate may also be liable to prosecution.

In addition, there may be consequences under labor law. If an employee feigns an inability to work, this may result in a written warning, termination, and, under certain circumstances, claims for damages.

What should employers and employees keep in mind right now?

The current legal provisions still apply. Employers should therefore review the documentation requirements set forth in their employment contracts and company policies. Employees should report sick immediately and clarify in a timely manner when their employer requires a doctor’s note.

The new requirements are not yet in effect

The reform could significantly tighten the documentation requirements for short-term sick leave. However, until new statutory provisions actually take effect, Section 5 of the Continued Pay Act remains in force. Employers and employees should therefore not confuse political decisions with existing law.