Foreign Medical Certificates of Incapacity
Which principles are applicable?
Medical certificates of incapacity issued outside the European Union are subject to the same standards as those issued in Germany. However, the evidentiary value of such certificates may be called into question if circumstances arise that, while insufficient in isolation, cumulatively create reasonable and substantial doubts about the plaintiff's alleged incapacity to work.
*where only the masculine form is mentioned in this article, the feminine / diverse form is also included
Federal Labour Court, verdict of 15th January 2025 - 5 AZR 284/24 (PM)
Summary of the press release from the Federal Labor Court
The parties are in dispute continued payment of remuneration during sick leave for September 2022.
The plaintiff had previously submitted medical certificates of incapacity that directly coincided with his vacation periods. From August 22nd, 2022, to September 9th, 2022, the plaintiff was on vacation, which he spent in Tunisia. Central to the legal proceedings is a medical certificate issued by a Tunisian doctor on September 7th, certifying that the claimant was unfit for work until September 30th and advising that he was neither fit to move nor to travel during this period. Nevertheless, the plaintiff booked a ferry ticket on September 8th for a journey from Tunis to Genoa scheduled for September 29. He subsequently undertook the journey as planned, continuing by car from Genoa to Germany.
The defendant employer declined to pay remuneration for the sick leave period from September 7th to September 30th, 2022.
The Labor Court dismissed the claim. The Regional Labor Court (LAG) reversed this decision and ordered the defendant to pay. However, the defendant’s appeal to the Federal Labor Court (BAG) was successful.
The 5. Senate ruled that the LAG correctly recognized that a medical certificate of incapacity issued in a non-EU country is, in principle, accorded the same evidentiary value as one issued in Germany. This requires, however, that the certificate clearly indicates that the foreign doctor distinguished between a mere illness and one resulting in incapacity to work.
Nevertheless, the LAG failed to perform the necessary holistic evaluation of the circumstances and instead analyzed the facts in isolation. A comprehensive assessment of the facts, as required, led to the conclusion that the evidentiary value of the medical certificate was compromised. The following factors were particularly significant:
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The Tunisian doctor certified the plaintiff as incapacitated for 24 days without mandating a follow-up consultation.
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The plaintiff booked a ferry ticket on September 8th for travel on September 29th, just one day after being advised to remain at rest until September 30th.
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The plaintiff ultimately undertook the journey on September 29th.
In light of these circumstances, the evidentiary value of the medical certificate was deemed undermined. As a result, the plaintiff bears the full burden of proof regarding his incapacity to work. Since the requisite findings of fact had not been established, the case was remanded to the Regional Labor Court for further proceedings.
Conclusion & practical tip
If the evidentiary value of a medical certificate of incapacity is called into question, this results in a reversal of the burden of proof. The employee then bears the full burden of proving that incapacity to work genuinely existed. This proof can generally only be provided through the testimony of the treating physician. In the present case, if the Regional Labor Court (LAG) applies the principles established by the Federal Labor Court (BAG), the Tunisian doctor would therefore need to testify before the LAG.
With this decision, the Federal Labor Court (BAG) continues its recent jurisprudential trend of making it easier for employers to challenge the evidentiary value of medical certificates of incapacity.
You may also be interested in this article: Doubts about Incapacity to Work? Requirements for the Medical Diagnosis.
Author of this article: Janina Aue, Lawyer & Mediator
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