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Labour law

Employer Rights in Germany: Verifying Employee Sick Leave through Surveillance and Legal Measures

Employers in Germany have the right to take measures to verify the legitimacy of an employee’s sick leave if there are justified doubts about the reported illness. These possibilities and their legal limitations are strictly regulated and may include the involvement of medical services, private investigators, or technical surveillance methods.

Notification Duty and Medical Certificate

Employees in Germany are obligated under the Entgeltfortzahlungsgesetz (EntgFG – Continued Remuneration Act) to provide a medical certificate of incapacity for work no later than on the fourth day of illness. However, employers may demand such a certificate from the first day of illness. Failure to submit the medical certificate in a timely manner can lead to dismissal, especially in cases of repeated violations of this obligation.

Doubt About Incapacity for Work and Involvement of the MDK

If the employer has doubts about the employee’s incapacity for work, they can request the involvement of the Medical Service of the Health Insurance Funds (MDK) to assess the legitimacy of the incapacity. This is a common procedure, particularly in cases of frequent or prolonged illness. The MDK provides an independent evaluation of whether the reported incapacity is justified.

Surveillance by Private Investigators

Another option available to employers is the hiring of private investigators. However, surveillance through private investigators is only permissible under strict conditions. The suspicion must be based on specific and concrete evidence, such as indications of moonlighting during sick leave or implausible illness patterns. The Federal Labour Court of Germany has ruled in several cases that surveillance by private investigators is only justified if there is a sufficiently substantiated suspicion of a serious breach of duty. If the surveillance is carried out unlawfully, the employer may be liable to pay damages for pain and suffering.

Use of GPS Trackers and Technical Surveillance Tools

The use of GPS trackers to monitor employees is only permissible under very strict conditions. Such measures constitute a significant intrusion into the employee’s right to privacy and are only justified if they are necessary and proportionate. The use of such surveillance methods without a legitimate suspicion of a crime or serious breach of duty is illegal.

Consequences for Employees Who Fake Illness

Employees who fake illness to avoid work face serious consequences. In such cases, employers are entitled to terminate the employment contract without notice, as the trust between the parties is irreparably damaged. Additionally, the employer may claim damages, such as the cost of hiring a private investigator.

Evidentiary Value of the Medical Certificate (AU)

In Germany, the medical certificate (Arbeitsunfähigkeitsbescheinigung or AU) holds significant evidentiary value. Employers must provide concrete evidence to challenge the validity of the AU. The Federal Labour Court has ruled that the evidentiary value of the AU may be questioned if, for example, the timing of the certificate coincides exactly with a notice period, if the employee fails to follow medical advice, or if contradictory diagnoses are present.

Conclusion: German employers have several options to verify the legitimacy of an employee’s sick leave if doubts arise. These include involving the MDK, hiring private investigators, or even employing technical surveillance methods, though all of these measures are subject to strict legal requirements. Employees who misuse sick leave face severe consequences, including dismissal and potential liability for damages. The medical certificate (AU) remains highly valued as proof of incapacity for work, but its evidentiary value can be challenged under certain circumstances.

German Lawyer Jens Ferner (Criminal Defense & IT-Law)
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