Sick leave from the first day: Is that legal??
A sick note is generally only due after three days of absence – at least that is what most employees believe. The boss can decide for himself when he wants to see a medical certificate. The German lawyer information clears the right myth up.
Germans go to the doctor more often than most other Europeans – on average around ten times a year. The principle of sick leave in Germany is also to blame for this, say physicians from the University of Magdeburg in a recent study. The researchers also have a suggestion for improvement: anyone who feels bad should be able to call in sick themselves for up to a week without a doctor's note.
So far, employees have to go to the doctor much faster. "As a rule, employers require a certificate of incapacity for work after three days of illness at the latest," says attorney Donata Grafin von Kageneck of the German Bar Association (DAV).
Employer is allowed to demand a medical certificate on the first day already
Many employees therefore ame that they are allowed to take three days off sick in any case without seeing a doctor. This is a mistake. Although Section 5 of the Continued Payment of Remuneration Act states that the employee must submit a medical certificate if he or she is unable to work for "more than three days". But at the same time, the law gives the employer the right to demand sick leave "earlier". "This means that, in individual cases, the employer may demand a medical certificate on the first day of illness," says the lawyer Countess von Kageneck.
Most employers do not make use of this right and only require a sick note, i.e. a medical certificate, from the fourth day of absence onwards. This is usually more sensible: especially in the case of minor illnesses, it is usually more beneficial for recovery to stay in bed for a day than to go to the doctor right away. In addition, a certificate requirement from the first day motivates employees to go to work despite illness, where they then infect colleagues.
Sick leave from the first day: no justification required
A sick note from the first day is therefore usually only required by the boss from employees who have been conspicuous in the past for their high absenteeism and who are suspected of abusive handling of sick notes.
Even though the law does not allow the boss to specifically pick on or discriminate against individual employees, he does not have to provide a separate justification for why he requires an employee to provide a doctor's note as early as the first day of illness. This is the result of a decision of the Federal Labor Court from 2012 (5 AZR 886/11). In this case, an editor had filed a lawsuit against her employer, who had demanded that she provide a sick note with a doctor's certificate from the first day following a questionable sick note.
Immediate sick note is always obligatory
It is basically at the discretion of the employer, from which of his employees he wants to see immediately a medical certificate of incapacity for work, said the court.
It does not matter whether the employer's mistrust is actually justified. In accordance with his general right to ie instructions, he may decide for himself when to demand the sick note immediately. An employee who suspects discrimination needs solid evidence to prove it. By the way: Employees generally do not have to have a health check-up.
Even if the boss does not require an immediate medical certificate, the following applies to all employees: A sick leave is not possiblereport from the first day is always obligatory. If you fail to notify your employer of your illness as soon as possible on the first day of absence, you can expect to receive a warning.