Online sick note after termination: When employers can doubt an online sick note

According to the German health insurance company AOK, employee absenteeism is heading for a new record, with as many cases of illness in August 2024 as in the entire previous year 2023. What’s more: In the world of work, it is not uncommon for employees to call in sick until the end of their notice period after they have been given notice.

This can regularly be attributed to the employee’s lack of motivation. Case law has increasingly had to deal with such cases in recent years. The following legal questions arise for the companies concerned in dubious cases: How can the evidential value of a certificate of incapacity for work be challenged? What needs to be considered? How secure are online sick notes and what options do employers have?

The high evidential value of the certificate of incapacity for work

The certificate of incapacity for work has a high evidential value. From a procedural point of view, there is prima facie evidence in favor of the employee that the employee is presumed to be unfit for work due to illness if a medical certificate has been submitted. The employer can challenge such evidential value.

However, the employer must substantiate in court that there are serious doubts about the employee’s illness. Employers have been successful in doing so only in rare cases.

Reduced requirements for challenging the evidential value

Since 2021, case law has essentially reduced the requirements for employers to challenge the evidential value. The German Federal Labor Court (BAG) assumed that serious doubts can also result from the fact that the certified incapacity for work precisely covers the duration of the notice period. Last year, the BAG extended its previous case law to follow-up certificates in its decision of December 13, 2023 (5 AZR 137/23).

In its decision of June 28, 2023, the BAG also affirmed serious doubts if the certificate of incapacity for work issued violates the Incapacity for Work Directive. However, only violations of the provisions in Art. 4 and Art. 5 of the Incapacity for Work Directive are relevant (5 AZR 248/23).

The events prior to the incapacity for work, the period of time and the subsequent activities of the employee are decisive as evidence in order to compromise the evidential value.

Challenging the evidential value of an online certificate of incapacity for work

Since 2020, Art. 4 (5) of the Incapacity for Work Directive has allowed the possibility of determining incapacity for work as part of a video consultation and is possible within narrow limits. On December 7, 2023, the German Federal Joint Committee (“GBA”) decided that the first sick note by telephone is possible for a maximum of five days.

The evidential value of a certificate of incapacity for work issued by video or telephone consultation is disputed in the literature and has not yet been decided by the courts. Some argue in favor of a high evidential value as long as the requirements of the Incapacity for Work Directive are met. This is in particular due to the fact that no special form is required in order to establish incapacity for work.

Others, on the other hand, assume a lower evidential value, as the inability to directly examine the patient is associated with greater uncertainties. It is also argued that the higher degree of anonymization leads to a higher risk of abuse. The GBA has also recognized the uncertain factual basis, which is why an obligation to inform the patient about the limited possibilities for diagnosis was standardized in Art. 4 (5) sentence 8 Incapacity for Work Directive.

Conclusion: Legal uncertainty with online certificate of incapacity for work

It is to be welcomed that the case law has relaxed and further specified the requirements for challenging the evidential value of the certificate of incapacity for work. This provides employers with guidance as to when a certificate of incapacity for work can be considered to be invalid and makes it easier for them to challenge the certificate of incapacity for work.

The employee must then provide full proof of incapacity for work, i.e., the employee must explain and prove which specific health impairments existed with which effects on their ability to work and which behavioral measures or medication were prescribed by a doctor. However, it still always depends on the individual case.

In contrast, there is still legal uncertainty regarding online certificates of incapacity for work. As there is no relevant case law to date, employers are facing new challenges. Even if AOK sees no connection between the increase in the sickness rate this year and the introduction of telephone sick notes, there are voices in politics calling for the abolition of online certificates of incapacity for work. It therefore remains to be seen whether online sick notes will continue to exist. 
 
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