Pursuant to section 5, subsection 1, sentence 3, of the Continuation of Remuneration Act (Entgeltfortzahlungsgesetz, EFZG), the employer is entitled to require the employee to submit a medical certificate stating the existence of the incapacity to work and its expected duration from the first day of the illness. The exercise of this right is at the employer's discretion and is not subject to any special requirements.
The plaintiff is employed by the defendant broadcasting company as an editor. She applied for a business trip on 30 November 2010, which her superior did not grant. A further request by the plaintiff for permission to travel on business on 29 November was rejected. On 30 November, the plaintiff called in sick and returned to work the following day. The defendant then requested the plaintiff to see a doctor on the first day of sick leave and to submit an appropriate medical certificate. In her action, the plaintiff sought the revocation of this instruction and asserted that the employer's demand for the submission of a medical certificate of incapacity for work already for the first day of illness required an objective justification. Moreover, the collective agreement applicable to the defendant did not provide for such a right.
The lower courts dismissed the action. The plaintiff's appeal was unsuccessful. The exercise of the right granted to the employer by section 5 (1) sentence 3 EFZG is at the employer's discretion, which is not bound. In particular, it is not necessary that there be a reasonable suspicion against the employee that he had only feigned illness in the past. A collective agreement provision only precludes this if it expressly excludes the employer's right under section 5 (1) sentence 3 EFZG. This was not the case here.
Federal Labour Court, Judgement of 14 November 2012 - 5 AZR 886/11 -
Previous instance: Cologne Regional Labour Court, judgment of 14 September 2011 - 3 Sa 597/11 -
Source: Press release of the Federal Labour Court
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
