No continued payment of wages in the event of illness when registering sick online
In individual cases, issuing an online sick note may not be sufficient to prompt the employer to continue paying wages in the event of illness.
Probative value of the certificate of incapacity for work
The basis for any continued payment of wages in the event of illness is a “properly” issued medical certificate of incapacity for work, as this has a high evidentiary value according to labor court case law. Based on a certificate of incapacity for work issued by a doctor, there is a presumption that the employee is unable to work due to illness. However, according to a decision of the Federal Labor Court made in 1976, a proper certificate of incapacity for work in this sense cannot be assumed if the issue was not preceded by an examination and a remote diagnosis is not possible due to a lack of patient relationship (BAG, judgment of August 11, 1976, ref .: 5 AZR 422/75). Even though the conditions under which sick notes should be possible without personal contact with a doctor have now been relaxed (see below), a certificate of incapacity for work based on a “remote diagnosis” must still meet certain minimum standards.
Decision of the Berlin Labor Court
The Berlin Labor Court also saw it that way. In a case he decided, there was predictably no contact between doctor and patient on the provider's website at any time. The doctor only received pre-formulated answers to pre-formulated questions from the employee that suggested the assumption of a specific diagnosis. Under these conditions, the certificate of incapacity for work has no evidentiary value, according to the Berlin Labor Court. Since the employee could not prove his inability to work with this certificate or in any other way, he was not entitled to continued payment of wages in the event of illness (Berlin Labor Court, judgment of April 1, 2021, Ref: 42 Ca 16289/20).
Consequences for practice
Meanwhile, providers who advertise by issuing online sick notes are springing up like mushrooms. You can rely, among other things, on the fact that since 2020, according to the relevant incapacity for work directive, examinations should also be possible without personal medical contact. While until January 2022 it was still required that the doctor knew the patient personally, since January 2022 this has even been waived entirely under certain circumstances. Following the amendment of Section 4 Paragraph 5 of the AU Guideline, sick leave for previously unknown patients is now also possible, provided it does not exceed a period of up to three days. However, since no investigation was carried out at all in the case decided by the Berlin Labor Court, the court completely denied the plaintiff employee his claim to continued payment of wages.
How an employer can react to dubious sick notes remains to be examined on a case-by-case basis. This can include, among other things, that the employer only continues to pay wages if the employee has provided information about the creation of the AU certificate. In any case, the probative value of a certificate of incapacity for work created online is only comparable to that of a medical certificate issued on the basis of a personal doctor's visit under certain circumstances.
Corona-related special regulation
The problem described should not be confused with the special regulation in Section 8 Paragraph 1 of the Incapacity for Work Directive. According to this special regulation - which is initially valid until May 31, 2022 - an AU certificate may also be issued on the basis of a "thorough telephone survey" if it is to determine the incapacity for work of insured persons with upper respiratory tract diseases who do not have severe symptoms . In these cases, the certificate of incapacity for work may be issued for a period of up to 7 calendar days - and once for a further period of up to another 7 calendar days.
Oliver Kieferle, Specialist lawyer for labor law
