A sick note from the doctor proves that you can't do your job. This principle does not always apply: in some cases, the boss can request an expert opinion.
Influenza, migraines and even autoimmune diseases such as MS: Unless otherwise stipulated in the employment contract, the employee must present a doctor's certificate from the fourth day of illness. The latter determines the duration of the incapacity for work (AU). The ultimate goal is for the patient to rest until the disease is largely cured. Sometimes this can be the case after a few days, in other cases the employee is absent for several weeks due to illness.
The latter is a situation for employers that should be prevented as much as possible. This is because the sick employee continues to receive his salary even though he does not perform any work. However, if there is a medical certificate of incapacity for work, the boss cannot do anything about the employee's absence – according to the common assumption. But that's not quite true. Lawyers Pascal Croset and Inno Merkel of the Berlin law firm Croset have told Business Insider when employers can raise legitimate doubts about sick leave and take appropriate steps.
No employer will doubt an inability to work, right? © Fleig/Imago
When the employer is allowed to have the sick leave checked by the doctor despite a certificate
According to the lawyers, there are three classic constellations in which doubts on the part of the employer are usually justified. If one of the three situations occurs, the employer has the opportunity to obtain an expert opinion from the Medical Service (MDK). This is commissioned by the health insurance company of the employee concerned. The MDK examines whether the employee is really unable to work, according to the Business Insider website.
In the following cases, the employer may involve the MDK or take other steps under labor law:
- If the employee announces his absence: The employer can justify this, for example, by saying that the employee wanted to register a vacation day, but this could not be approved. If the employee is then absent due to illness, a feigned illness is obvious.
- The "sick" employee is caught doing another job: Anyone who works despite a sick leave certificate and is caught by the other employer can expect that the employer will have the submitted certificate checked. A warning or even termination is possible.
- The employee is rhythmically absent every Friday or Monday: even in this case, the employer will usually get away with it in court if he doubts the employee's AU certificate.
It can have serious consequences for the employee if he is caught making a blue. These range from loss of wages to dismissal. (jg)
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