The certificate of incapacity for work
A certificate of incapacity to work is the factual basis for the entitlement to continued remuneration pursuant to Section 3 of the Continued Remuneration Act (EFZG) for employees who fall ill. A certificate of incapacity for work enables the sick employee to provide the necessary proof that they were truly unable to fulfill their work obligations due to illness.
However, the question is whether the certificate of incapacity for work is required to fulfill the provisions of the Incapacity for Work Directive (AURL) or whether violations can compromise the certificate’s evidential value.
Sickness during the notice period
An employee was employed by a recruitment agency as a technical draftsman from mid-January until the end of September. He was given notice of termination at the end of the month on September 2. He then fell ill and took sick leave, submitting two certificates of incapacity for work which covered the period from September 7 until September 30. However, he did not receive any money for September – neither as wages, nor as continued remuneration.
Consequently, the man sued for continued remuneration amounting to approximately 1,800 euros for the period from September 7 to September 30. He argued that he had submitted the necessary certificates of incapacity for work, explaining that severe shoulder pain and restricted movement had left him unable to work.
The employer did not truly believe the medical certificates and questioned the evidential value, citing violation of the Incapacity for Work Directive (AURL). Section 5 (1) sentence 5 of the Incapacity for Work Directive (AURL) (new version) stipulates that the doctor should have replaced the symptoms described in the medical certificate, such as shoulder pain, with an ICD-10 coded (suspected) diagnosis after seven days at the latest.
Federal Labor Court: Evidential value despite violations of the Incapacity for Work Directive?
Ultimately, neither the Labor Court, the State Labor Court nor the Federal Labor Court considered the evidential value of the certificate of incapacity for work to be undermined by the violation of Section 5 of the Incapacity for Work Directive.
However, Federal Labor Court stated that doubt could be cast on the correctness of a medical certificate due to violations of Section 5 (1) sentence 5 of the Incapacity for Work Directive (new version). Symptoms in the medical certificate must be replaced promptly by an ICD-10 diagnosis, even if this diagnosis code is primarily required for invoicing purposes.
Nevertheless, doubts about the correctness of the certificate of incapacity for work could also arise if the symptoms were not replaced by the diagnosis. Therefore, the evidential value of a medical certificate could be undermined if it is not issued in compliance with the Incapacity for Work Directive.
Nevertheless, the court did not see any violation of the Incapacity for Work Directive in this particular case. An ICD-10 code was given on the certificate. This could also be regarded as a diagnosis and not merely as a statement of non-specific symptoms. Furthermore, the Federal Labor Court also clearly stated that the Incapacity for Work Directive does not require a doctor to certify specific causes of pain as of the second week of illness.
Check medical certificates carefully
If an employee suddenly falls ill after being dismissed and remains unable to work until the end of their notice period, suspicion that the employee may not have been as unfit for work as their medical certificate suggests is not unreasonable. In this case, carefully examining the certificate of incapacity to work with a view toward the provisions of the Incapacity for Work Directive may make sense.
Please also read our article on this topic “Evidential value of the certificate of incapacity for work”.
What can we do for you?
Do you have doubts about an employee’s certificate of incapacity for work and would like to clarify their continued remuneration claims? Do not hesitate to contact us!
Summary of the key facts:
- A medical certificate has very high evidential value.
- The evidential value may be undermined if facts justify the assumption that the employee was/is not unfit for work.
- If the certificate of incapacity for work violates the provisions of the Incapacity for Work Directive, this can undermine ts evidential value.
