Ten percent - that's how many German employees admitted in a survey of 1,000 participants conducted by the market research institute Harris Interactive in 2015 that they occasionally take “sick” leave. The number of unreported cases is probably much higher. Despite the threat of consequences under labor law, many employees often have little awareness of the risks involved when obtaining a medical certificate without actually being sick.
Evidential value of medical certificates of incapacity for work
The reason for this is that a doctor's certificate of incapacity for work is the legally prescribed means of proving incapacity for work. For this reason, labor courts regularly assign a high evidential value to the certificate of incapacity for work, which is colloquially referred to as the "yellow slip". A properly issued certificate of incapacity for work establishes the factual presumption that the employee is incapable of work due to illness. If the employer doubts the employee's actual incapacity for work, it must refute the evidential value of the certificate of incapacity for work submitted by the employee by means of concrete factual evidence. In practice, such proof is regularly difficult to provide successfully and is often frustrating for employers. Demanding review by the medical service of the statutory health insurances only rarely offers help. This is because the health insurances are only obliged to obtain an expert opinion in very limited cases. In addition, it takes several days to weeks for the medical service to become active and request the employee to undergo an examination. Thus, if the employee is only sick for a few days, the involvement of the medical service is of no help. Caution is also required when calling in a private investigator (which is also very cost-intensive) to uncover a feigned inability to work. If the employer has the employee monitored without concrete and justified suspicion, this may constitute a violation of the employee's right to privacy and may even give rise to claims for damages on the part of the employee.
Obligation to comply with the incapacity for work directive
What options do employers have for responding to a suspicion of faked incapacity for work? One option is to contact the doctor who issued the certificate of incapacity for work directly in writing. When issuing a certificate of incapacity for work, physicians must adhere to the precise "rules of the game" laid down in the so-called incapacity for work guidelines. A reference to this as well as to the consequences under professional and criminal law of issuing "certificates of convenience" may well be worthwhile. This is all the more true since the legislature passed the "Act amending the Infectious Diseases Protection Act and other laws on the occasion of the repeal of the determination of the epidemic situation of national scope" on November 24, 2021.
Criminal liability for issuing and using incorrect health certificates
While the regulations on infection control in the workplace introduced by the above-mentioned law are currently the subject of controversial discussion, the criminal provisions on the issue and use of incorrect health certificates (§§ 277 ff. StGB), which were also amended by the same legislation, have so far gone largely unnoticed. This is unjustified, because from now on both the issuing of an incorrect health certificate - which undoubtedly includes certificates of incapacity for work - and the use of an incorrect health certificate are punishable if the issuing or use is intended to deceive in legal transactions. The previous restriction that the incorrect health certificate must serve to deceive an authority or insurance company has been dropped. With the reform, the legislator wanted to close gaps in criminal liability, not least under the influence of the current debate about forged vaccination certificates. With regard to incorrect certificates of incapacity for work, the legislator literally states in the explanatory memorandum to the law: "If the incorrect health certificate is drawn up, for example, for the purpose of deceiving the employer about a state of health, this also appears to be punishable" (BT-Drucksache 20/15, p. 34). The reform means a considerable increase in the risk of criminal liability both for physicians who issue "certificates of convenience" and for employees who submit such a certificate to their employer. On a subjective level, it is sufficient for the criminal offense of issuing an incorrect health certificate to be committed if the physician is aware of the incorrectness of the health certificate he or she has issued (which is likely to be the case if a certificate is issued in violation of the requirements of the Work Incapacity Directive) and assumes that the incorrect health certificate will be used against another person in order to induce that person to engage in legally significant conduct. Employees who present an incorrect certificate of incapacity for work to the employer with the aim of "taking sick leave" regularly fulfill the subjective elements of the offense under Section 279 of the Criminal Code. This is because they are aware of the incorrectness of the health certificate issued and intend precisely to deceive the employer about their state of health.
New options for action for employers
The legal reform gives employers new options for action in the event of doubts about an employee's actual incapacity for work. Unlike in the past, criminal charges brought by the employer against the doctor or the employee for issuing or using incorrect health certificates will not automatically come to nothing. If the facts presented by the reporting employer give rise to a corresponding initial suspicion, the public prosecutor's office is obligated to initiate an investigation pursuant to Section 152 (2) of the German Code of Criminal Procedure (StPO). If the suspicion is substantiated, the investigating authorities can even order the search of residential and practice premises and seize patient files, for example. The prospect of being subjected to such investigative proceedings is likely to be a deterrent in itself. This applies all the more to the impending consequences in the event of a conviction (fine or imprisonment of up to two years for issuing incorrect health certificates and fine or imprisonment of up to one year for using incorrect health certificates). In addition, there are consequences under labor law for the employee who demonstrably deceives his employer about a non-existing incapacity for work. The deliberate feigning of an incapacity to work generally justifies termination without notice (cf. LAG Rheinland-Pfalz, judgment dated July 11, 2013 - 10 Sa 100/13 with further references).
The issuing and in particular the use of "certificates of convenience" are, contrary to the frequently prevailing view, not trivial offenses. The legislator has now clarified this by expanding the criminal offenses in §§ 277 et seq. of the German Criminal Code (StGB). The reform of these provisions opens up new possibilities for employers who have doubts about the actual incapacity of employees to work. If there are corresponding grounds for suspicion, the announcement and, if necessary, the filing of a criminal complaint against the doctor and/or employee can in future be an effective means of curbing "yellow sick leave slips".