Germany: When a sick note is not enough: Cologne Higher Labour Court tightens requirements for continued pay during illness

A medical certificate of incapacity for work is normally sufficient to receive continued remuneration for periods of sickness. However, if suspicious circumstances exist, the evidentiary value of the sick note can be undermined – then the employee must provide detailed proof of the actual incapacity for work. In a judgment of 3 June 2025 (Ref. 7 SLa 54/25), the Higher Labour Court of Cologne clarified the requirements for this proof.

The case: Sick leave after being assigned unpopular new tasks

A bus driver was employed on a fixed-term basis from September 2022 to August 2024 by a public transport company. In autumn 2023, he was assigned new bus routes, which he openly disliked. At the end of September 2023, he called in sick due to a diarrhoeal illness. After five days of being fit for work — during which he took part in training for the new routes — he returned all his work equipment on 16 October 2023 and submitted a new sick note, this time citing an acute stress reaction and later depression.

The employer refused to pay wages from mid-October onward. The parties disputed two versions of events: The bus driver claimed that his boss had demanded the return of the equipment on 15 October under threat of dismissal. The employer denied this, arguing that the driver had returned the equipment voluntarily because he no longer wanted to work. The driver sued for continued pay for the periods of 1–8 October 2023 and 16 October–26 November 2023.

The ruling: No entitlement to continued remuneration

The Aachen Labour Court had ordered the employer to pay €1,010.56 gross as continued remuneration for the period 2–8 October 2023 and had dismissed all further claims. The Higher Labour Court of Cologne upheld this decision and found that — regardless of which version of events was true — no entitlement to continued remuneration existed after 16 October 2023.

Evidentiary value undermined by suspicious circumstances

Even under the assumption that the driver’s statements were accurate, the sick note was insufficient. The court identified too many suspicious coincidences:
The sick leave was issued exactly on the day the driver expected dismissal and returned his equipment. The illness began precisely when he was due to start on the new routes he disliked. The driver remained on sick leave continuously until the final day of his fixed-term contract. All together, these coincidences undermined the evidentiary value of the medical certificate.

Once the evidentiary value is undermined, the certificate alone is not enough. The employee must then explain concretely which symptoms he had, how these affected his ability to work, what medical instructions he received, and what medication was prescribed. The bus driver listed only the medical diagnoses (acute stress reaction F43.0, moderate depressive episode F32.1), without explaining how these manifested and why they prevented him from driving a bus. This was insufficient for the court.

In addition, the medical certificate listed a viral infection (B34.9G) and gastroenteritis/colitis (A09.0G) – the same diarrhoeal illness previously diagnosed in late September. The driver made no submissions regarding these additional diagnoses.

Single cause: Lack of willingness to work excludes entitlement

If the employer’s version were correct and the driver had voluntarily returned his equipment, the principle of a single cause applies: the entitlement to continued remuneration only exists if the sickness is the sole cause for the employee’s absence. The voluntary return of all work equipment was considered a strong indication of the individual’s unwillingness to work. Combined with prior statements that he did not want to drive the new routes, everything suggested he was no longer willing to work. Someone unwilling to work cannot receive continued remuneration, even in case of actual sickness. The driver would have had to prove that he was willing to fulfil his contractual duties again – which he did not.

Six-week period already exhausted

Even if the driver had indeed been incapable of working, he would only have been entitled to continued remuneration until 18 October 2023. By law, continued remuneration is limited to six weeks (42 days) per illness. If the same diagnosis recurs within six months, the period continues. The driver had already been off work for 39 days, including 12 days between 27 September and 8 October with the diagnosis of gastroenteritis/colitis – the same diagnosis that appeared again from 16 October. Thus, only three days of entitlement remained. The driver would have had to show that earlier sicknesses in March (19 March–5 April 2023, 18 days) and August (17–25 August 2023, nine days) had completely different causes. He failed to do so, even though he had expressly asserted a continued sickness.

Practical consequences for employers

Document indicators and undermine evidentiary value

Employers do not have to accept sick notes unquestioningly. It is advisable to document all suspicious circumstances carefully: timing coincidences with conflicts or unwanted tasks, statements hinting at refusal to work, or the return of work equipment without any plausible reason. Multiple indicators occurring together are particularly persuasive.

Employers do not have to prove the employee is healthy; it is enough to raise doubts about the evidentiary value of the sick note. The court then evaluates whether the overall circumstances give rise to serious doubts about actual incapacity for work.

Assert continuation of a sickness and single cause of incapacity to work

In disputes about continued remuneration, employers should also assert the presence of a continued sickness under § 3(1) sentence 2 EFZG. This requires checking whether the employee was previously on sick leave within the last 6 months with the same or a similar diagnosis and calculating precisely how many days of the 6-week period have already been used. Raising the issue of a continued sickness significantly increases the employee’s burden of proof.

Employers should also check whether reasons other than illness may explain the employee’s absence. Under the principle of sickness as the single cause, continued remuneration is only owed if sickness is the sole cause of absence. A lack of willingness to work—evident from the unsolicited return of work equipment or prior statements—excludes the entitlement.

Conclusion

This decision demonstrates that while medical certificates are the key evidence for incapacity to work, they may not suffice when suspicious circumstances exist. Employers with justified doubts should critically examine claims for continued remuneration and document all indicators thoroughly.

The ruling also highlights the practical importance of the continuation-illness rule and the single cause principle: repeated sicknesses with the same diagnosis can exhaust the statutory 6-week period, and a lack of willingness to work excludes entitlement altogether. Employers who understand and consistently apply these principles can significantly strengthen their position in disputes over continued remuneration.