Federal Labour Court, 14.11.2012, Ref.: 5 AZR 886/11
We have already reported here on the case of the Cologne Regional Labour Court of 14 September 2011, case reference: 3 Sa 597/11, which dealt with the question of whether it is legal for the employer of an editor to request that she submit a certificate of incapacity for work on the first day in the event of illness:
The legal basis for submitting a medical certificate is the Continued Remuneration Act (EFZG).
§ Section 1 EFZG regulates the payment of wages on public holidays and the continued payment of wages to employees in the event of illness, as well as economic security in the area of working from home for public holidays and in the event of illness.
According to § 3 EFZG, employees are entitled to continued payment of remuneration by the employer for 6 weeks if they are unable to work due to illness and are not at fault.
The employee's notification and verification obligations are regulated in Section 5 EFZG. According to this, the employee is obliged to inform the employer immediately of any incapacity for work and its expected duration.
If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate stating the existence of the incapacity for work and its expected duration on the following working day at the latest:
The employee is obliged to inform the employer of the incapacity for work and the expected duration of the incapacity.
duration without delay. If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate confirming the existence of the incapacity for work and its expected duration on the following working day at the latest. The employer is entitled to demand that the medical certificate be submitted earlier. If the incapacity for work lasts longer than stated in the certificate, the employee is obliged to submit a new medical certificate. If the employee is a member of a statutory health insurance fund, the medical certificate must contain a note from the attending physician stating that a certificate of incapacity for work with details of the findings and the expected duration of the incapacity for work will be sent to the health insurance fund without delay.
The Federal Labour Court in Erfurt has now confirmed the legal opinion of the Cologne Higher Labour Court on the following grounds:
The exercise of the right granted to the employer by § 5 Para. 1 Sentence 3 EFZG would be at the employer's discretion, which is not binding.
In particular, it is not necessary for there to be a justified suspicion that the employee has only feigned illness in the past.
A collective agreement provision would only conflict with this if it expressly excludes the employer's right under Section 5 (1) sentence 3 EFZG. However, this is not the case in the present case.
Source: Federal Labor Court
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