The governing coalition intends to tighten the rules on reporting sick considerably. In future, employees are to require a medical certificate of incapacity for work as early as the first day of illness. In addition, sick notes issued over the telephone are to be abolished, and the issuing of false medical certificates is to be punished more severely.
Reporting sick and a sick note are not the same thing
Anyone who is unable to work because of illness must inform their employer without undue delay. Employees should, where possible, notify the employer before the start of work that they are unfit for work and how long the illness is expected to last.
This notification of sickness must be distinguished from the medical certificate of incapacity for work (Arbeitsunfähigkeitsbescheinigung, or AU for short). The employee makes the notification of sickness themselves. With the AU, a doctor confirms that the employee is unable to carry out their work for health reasons.
As a rule, the diagnosis does not have to be disclosed to the employer.
When is a certificate of incapacity for work required?
Under Section 5 of the German Continued Remuneration Act (Entgeltfortzahlungsgesetz, EntgFG), the current position is as follows: if the incapacity for work lasts longer than three calendar days, the medical certificate must, in principle, be available at the latest on the following working day.
If an employee falls ill on a Monday, for example, and is still unfit for work on the Thursday, they will need a medical certificate for the Thursday at the latest.
However, even under the current law, employers may require an AU to be obtained as early as the first day of illness. Such a requirement may arise from the employment contract, a works agreement or a specific instruction from the employer.
Employees with statutory health insurance generally no longer have to hand a paper certificate to their employer. The employer retrieves the data of the electronic certificate of incapacity for work from the health insurance fund. The obligation to report sick in good time nevertheless remains in place.
What is set to change with the reform?
Under the current plans, a certificate of incapacity for work is to become mandatory, in principle, from the first day of illness. The current statutory grace period of three calendar days would thereby be removed. According to the announcements so far, company-level or individual departures from this may possibly remain permissible.
For employers, the change could allow earlier monitoring of illness-related absences. At the same time, HR departments would have to ensure that the electronic AU data can be reliably retrieved and processed even for short illnesses.
For employees, the reform would mean that medical contact would, in principle, be required even for a one-day illness. This could lead to additional effort in particular for sudden but short-lived complaints.
Will telephone sick notes be abolished?
The coalition also plans to abolish sick notes issued over the telephone. At present, these are possible under certain conditions, in particular for patients who are already known to the medical practice and who have only mild symptoms.
Abolition would not necessarily mean that every patient has to attend the practice in person. Depending on the illness, a video consultation could still be possible. What matters is which rules the eventual legislation or guideline actually provides for.
When is a false medical certificate a criminal offence?
Under Section 278 of the German Criminal Code (Strafgesetzbuch, StGB), a doctor commits a criminal offence if they knowingly issue an incorrect health certificate in order to deceive in legal transactions. At present, this carries a fine or a prison sentence of up to two years.
Not every medical misjudgement is automatically a criminal offence. What is punishable in particular is the deliberately incorrect issuing of a certificate. Anyone who knowingly uses an incorrect health certificate may likewise be liable to prosecution.
There may also be consequences under employment law. If an employee feigns incapacity for work, a warning, dismissal and, in certain circumstances, claims for damages may come into consideration.
What should employers and employees do now?
The existing statutory rules still apply. Employers should therefore review which proof obligations are set out in their employment contracts and company rules. Employees should report sick without undue delay and clarify in good time from when their employer requires a medical certificate.
The new obligations do not yet apply
The reform could considerably tighten the proof obligations for short illnesses. Until new legislation actually enters into force, however, Section 5 of the Continued Remuneration Act continues to apply. Employers and employees should therefore not confuse political decisions with law that is already in force.
Do I have to notify my employer on the very first day of illness?
Yes. You must inform your employer without undue delay that you are unable to work and how long the incapacity is expected to last.
Do I currently need a medical certificate from the first day?
Only if your employer requires it or a corresponding company or contractual rule applies. By law, a certificate of incapacity for work is generally required only once the illness lasts longer than three calendar days.
Do I have to tell my employer my diagnosis?
No. As a rule, employees only have to state that they are unfit for work and how long the incapacity is expected to last.
Can the employer refuse to continue paying my wages?
Yes, temporarily. If the employee fails to meet the statutory proof obligations, the employer may in principle withhold continued remuneration.
May the employer question a sick note?
Where there are specific doubts, the employer can ask the health insurance fund to arrange a review by the Medical Service (Medizinischer Dienst). Mere mistrust is generally not enough to justify employment-law consequences.
Has the reform already been adopted?
The coalition has reached a political agreement on the changes. This has not yet become law.
