How do doctors not get sick

Certificate of incapacity for work: document of the nature of evidence

Often little is known about the legal background of certificates of incapacity for work and the risks of incorrect issuance. However, the documents have the legal quality of a document and can be used as relevant evidence in court.

Photo: Pejo

The medical certificate of incapacity for work (AU) is issued annually millions of times in Germany, whereby the numbers have increased sharply in the past 13 years. This is related to the higher sickness rate among employees in Germany: Since 2006, the number of days absent due to illness has risen by around 50 percent. The AOK Absence Report 2018 shows that insured employees were absent for an average of 19.4 days due to an AU. With this increase, the legal disputes have also increased: Terminations due to illness, disputes about continued payment of wages or allegations of fraud are more and more an issue in German law firms and courts. The treating physicians or the AU issued by them are often of central importance in legal disputes.

legal framework

If an employee is ill and unable to work, he or she will initially receive continued pay and later sick pay. However, the prerequisite is that the employee teaches an AU if the illness lasts longer than three days. Employment contracts often provide for a shorter period and the employer can even unilaterally stipulate that an AU must be submitted earlier. This submission requirement serves to protect the employer, because the AU is considered to be objective evidence and reliable information about the incapacity for work, which the employee has only alleged until then. If the employee does not meet his obligation to provide evidence, the employer can refuse to continue paying and, if necessary, even terminate the employment relationship.

With these interests in mind, the employee approaches the attending physician and asks for an AU to be issued. The doctor now not only has to determine that the employee is sick, but also that he is unable to work - for the performance of his specific work. The AU may only be issued by the doctor and only on the basis of a medical (remote) examination; in particular, delegation to non-medical staff is not permitted. The procedure for determining is the subject of the incapacity for work directive of the Federal Joint Committee on the assessment of incapacity for work.

In addition to the mere determination of the incapacity to work, the doctor is given further specifications: It must be attested how long the incapacity is likely to last. The certificate must also identify the doctor issuing the certificate, contain a note in the case of legally insured persons that the health insurance company has been informed and be signed by hand, stating the date.

The AU acquires decisive legal significance in court proceedings: If the employer is convinced that the employee was actually not unable to work, he / she refuses to continue to pay or terminates the employment relationship, then the incapacity for work is in dispute. Disputed facts require evidence and at this point the employee can bring the AU into the process. The AU has the legal quality of a document, with what is also known as prima facie evidence. As it is said, “Anyone who drives up is to blame”, also applies “Anyone who has an AU is sick”.

This principle is only given up if there are serious doubts - lawyers speak of a shaking of the prima facie evidence. This happens more and more often, which is not only due to the increased number of absent days. Many employees display their private life on social media, so that a mock incapacity for work is quickly apparent.

If the prima facie evidence is shaken, the employee must provide so-called full evidence of his incapacity for work. As a rule, the attending physician is then heard by the court as a witness. If the AU was issued negligently, this will become clear at this point at the latest.

False issues

It becomes serious for the doctor and patient if an AU is issued for no reason. It is well known that many of the AU issued are fraudulently provided by false information or are issued frivolously. Terms such as “yellow vacation” or “celebrating sick” have long been part of everyday language. Many cases make it to notoriety - for example a teacher who took sick leave to visit her daughter in the RTL jungle camp.

For employees, partying sick is often seen as a minor offense. It is by no means. The advancement of incapacity for work is a serious violation of the contractual obligations, which usually entitles the employer to terminate the contract without notice. In addition, there is a risk of claims for repayment and penal consequences, because the creeping of continued payment by fraud is a criminal offense of fraud.


The doctor cannot and does not have to change anything in such a situation if he is deceived by the patient and does not recognize or cannot recognize put forward reasons. In many cases at least doubts will remain, after all, many alleged diseases cannot be objectified, so that the doctor has to trust the patient's information. It is different when the deception is obvious; for example, if the employee expresses his intentions openly or the incapacity for work can be safely ruled out by the doctor. A critical look is required in any case, otherwise there is a risk of damage claims by the employer, criminal liability for aiding and abetting fraud and consequences under professional law.

In practice, unfortunately, it can occasionally be observed that some doctors exhibit the AU negligently - or even delegate the exhibitions to the office hours assistant - and are not aware of the legal consequences. It should be emphasized that the AU is not a document that only serves the interests of the patient, and the issue is not a courtesy. Even if the patient asks the doctor for the exhibition, the doctor is not in the patient's warehouse. The AU has a high legal value and employers and health insurance companies trust its correctness to the same extent as the employee.

Dr. jur. Willem Schulte
Dr. med. Friederike Niemeyer

In a nutshell: information for doctors

  • The employee's obligation to provide a certificate of incapacity for work (AU) is regulated in Section 5 EFZG, although the respective employment contract may provide for different provisions. The assessment of incapacity for work is the subject of the Incapacity Directive of the Federal Joint Committee. Due to the relaxation of the remote treatment ban, there are now the first online providers.
  • The AU must be issued by the doctor personally on the basis of his or her expertise. A delegation to non-medical staff is not permitted. The exhibition is not just a service in the interests of the patient - employers and health insurance companies rely equally on an appropriate assessment. In particular, the doctor must independently determine the duration of the certificate.
  • The doctor should be prepared for the fact that he will be heard as a witness by a court of the certified incapacity for work. He should document the evidence based on the assumption that the patient is incapable of working for his specific job. Subjective statements by the patient and doubts should also be documented. The same applies to the behavior recommended to the patient for recovery.
  • The refusal to issue a certificate of incapacity for work can put the doctor in a difficult situation due to a long-term relationship of trust. In the case of justified doubts, reference to the mutual risks and the high legal value of an AU can help.