The German sick note – unshakeable evidential value?

If an employee is unable to work through no fault of their own due to illness and is therefore unable to perform their work, they are entitled to continued payment of remuneration for a period of up to six weeks if the employment has existed for at least four weeks without interruption at the time of the illness (section 3(1), first sentence and section 3(3) of the German Sick Pay and Public Holiday Pay Act (Entgeltfortzahlungsgesetz - EFZG)). The current political discussion in Germany about the large number of sick days and the potential risk of abuse, however, is missing one crucial aspect, namely the following:

The employee must explain and prove their incapacity to work due to illness. The legally prescribed means of proof is the certificate of incapacity for work (Arbeitsunfähigkeitsbescheinigung) or “sick note”. A sick note is a medical certificate confirming that the employee is unable to work due to illness. However, this does not mean that an employer must continue to pay remuneration upon presentation of any sick note.

1. Principle: high evidential value of a sick note

According to the case law of the German Federal Employment Court (Bundesarbeitsgericht), a sick note has a high evidential value. If a sick note is issued, there is prima facie evidence that the employee is unable to work due to illness. The employer is generally obliged to continue paying remuneration.

2. Undermining the evidential value

Simply disputing the illness or expressing general doubts is not sufficient to undermine the high evidential value of the sick note. However, the evidential value of a sick note can be undermined if there are specific factual circumstances that give rise to serious doubts about the inability to work due to illness. German case law recognises such circumstances in the following situations in particular:

• The sick note is issued immediately after termination (regardless which party gave notice).
• The sick note covers or largely covers the entire notice period, i.e. the employee does not have to work until the end date.
• During the certified period of inability to work, the employee performs other activities that are inconsistent with recovery.
• There is otherwise contradictory or suspicious behaviour on the part of the employee (e.g. announcement of incapacity to work due to illness, incapacity to work due to illness for the duration of a rejected holiday request, or similar). However, it is always necessary to evaluate all the circumstances of the individual case.
• The sick note violates the requirements for sick notes laid down in the German Incapacity for Work Directive (Arbeitsunfähigkeits-Richtlinie) of the Joint Federal Committee (Gemeinsamer Bundesausschuss). This Directive determines the procedure for determining and certifying incapacity for work due to illness for persons with statutory health insurance.

If the evidential value of a sick note is undermined, the employer is entitled to refuse to continue paying the employee remuneration. The employee then bears the full burden of proof that they were and/or still are unable to work due to illness. In order to meet this burden of proof, the employee will usually have to release the doctor who issued the sick note from their duty of confidentiality. If the treating doctor is questioned as a witness in a lawsuit, it is important that any existing doubts are either dispelled or confirmed through their testimony.

3. Sick notes issued over the phone

According to the Incapacity for Work Directive, incapacity for work due to illness may only be determined based on a medical examination. The examination can be carried out in person or indirectly in person by video consultation. If it is not possible to determine whether a person is unable to work due to illness during a video consultation, a telephone interview (medical assessment) can be conducted if there are no severe symptoms. In the case of a telephone medical assessment, the initial determination of incapacity for work should not exceed a period of five calendar days. If there was no patient-doctor relationship prior to the telephone medical assessment, the determination of incapacity for work should not exceed a period of three calendar days.

A sick note issued properly over the phone has the same evidential value as one issued after a personal examination. The employer can only check whether a sick note issued over the phone has been issued properly based on the circumstantial evidence:

• How far apart are the employee and the office of the issuing doctor?
• What period was the sick note issued for?
• Has the employee been on sick leave based on a sick note issued by the same doctor before?
• Is the employee repeatedly on sick leave, possibly based on sick notes issued by different doctors?

4. Online sick notes – rejected by Hamm Regional Employment Court

Some employees even obtain online sick notes and submit these to their employer. Such sick notes are not based on direct, indirect or telephone contact with a doctor. There are several websites that issue these sick notes online, usually for a fee.

Hamm Regional Employment Court (Landesarbeitsgericht Hamm) had to rule on an online sick note in its judgment of 5 September 2025 (14 SLa 145/25). The court not only found that (i) the evidential value of an online sick note is undermined, but also that (ii) presentation of an online sick note constitutes cause within the meaning of section 626(1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) and can therefore justify termination for cause without notice.

In the underlying case, an employee received an online sick note in exchange for a fee and presented it to their employer as proof of their incapacity to work due to illness. The employer recognised that the sick note had been issued online and dismissed the employee for cause without notice.

The employee filed an action for unfair dismissal against the termination. Dortmund Employment Court (Arbeitsgericht Dortmund) initially upheld the action. Upon appeal by the employer, Hamm Regional Employment Court overruled the decision of Dortmund Employment Court and stated the following:

• If a sick note is issued without a personal or indirectly personal examination or a telephone assessment by a doctor, the sick note’s evidential value is already undermined by this procedural error. Contrary to the opinion of Dortmund Employment Court, it is not the employer’s responsibility to present additional circumstances that cast doubt on the employee’s incapacity to work due to illness. Instead, the burden of proof lies with the employee to prove that they were unable to work. Hamm Regional Employment Court also points out the following: in such cases, it must always be examined whether the circumstances undermining the evidential value of the sick note are to be regarded as so serious that they constitute strong evidence for the employer’s claim that the sick note was only feigned, meaning that the employee also has to refute this evidence.
• If an employee submits such a procedurally flawed sick note to the employer, the employee gives the false impression that it is a proper sick note, i.e. a sick note issued based on a direct, indirect or telephone medical assessment. This deception regarding medical contact as the basis for issuing the sick note constitutes a significant breach of duty and, in itself, cause within the meaning of section 626(1) of the German Civil Code, which may justify termination for cause without notice.

These clarifications by Hamm Regional Employment Court are to be welcomed: an online sick note does not meet the requirements of the Incapacity for Work Directive and is therefore already undermined in its evidential value. An employer can therefore withhold continued payment of remuneration; the employee must prove that they were unable to work due to illness. Since submitting an online sick note also constitutes an attempt to deceive the employer in order to continue being paid, Hamm Regional Employment Court’s statements on termination for cause without notice pursuant to section 626(1) of the German Civil Code are also persuasive.

5. Conclusion

The sick note remains the central means of proof with a high, but not unshakeable, evidential value. If the evidential value of a sick note is shaken, the employer is entitled to discontinue payment until the employee has proven their incapacity to work due to illness by other means. If the employee obtains an online sick note and presents the employer with it, according to the case law of Hamm Regional Employment Court this may even justify termination for cause without notice, depending on the overall circumstances of the individual case. As a result, employers are well advised not to continue automatically paying employees, but to check every single sick note for its evidential value.

Against this background, the current political discussion in Germany about the large number of sick days and the potential risk of abuse is missing a crucial aspect: employers have a tool at their disposal to defend themselves against unjustified claims for continued payment of remuneration. Every employer should know how to use this tool.