As fall begins, many nonprofit organizations in Germany experience an increase in employee absences due to illness. In small teams in particular, even a single employee’s inability to work can significantly disrupt staffing plans. It is therefore essential to handle employee sick leave notifications and medical certificates confirming incapacity for work in a legally compliant manner.
Rights and obligations when employees are unable to work due to illness
Unless the parties have already agreed on contractual provisions governing sick leave, the applicable statutory requirements apply when an employee becomes ill. Under Section 5(1) of the German Continued Remuneration Act (EFZG), employees must notify their employer without undue delay that they are unable to work and indicate the expected duration of their absence. If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate confirming the incapacity for work and its expected duration no later than the next working day. Section 5(1) EFZG also provides that the employer may require the medical certificate earlier at any time. No particular form is required for such a request.
In most cases, employment agreements already contain provisions governing periods of incapacity for work. It is therefore advisable to begin by reviewing the employment agreement applicable to the individual employee. Regardless of the contractual provisions in effect, however, the employer generally retains the right to require an employee to submit a medical certificate earlier in an individual case.
Continued payment of wages during sick leave
When an employee is genuinely unable to work due to illness, Section 3 EFZG generally entitles the employee to continued payment of wages for up to six weeks (or 42 calendar days), provided the incapacity for work was not caused by the employee’s own fault. Employment agreements and collective bargaining agreements may provide for longer periods of continued wage payment, so the applicable provisions must be reviewed in each case. If an employee becomes unable to work due to a different illness while already on sick leave, the principle that successive periods of incapacity are treated as a single period of absence for continued-pay purposes generally applies. Under this principle, the period of continued wage payment remains limited to six weeks.
According to the German Federal Labor Court (Bundesarbeitsgericht, BAG), this principle also applies when the certified periods of incapacity for work follow one another immediately or are separated only by a day on which the employee was not scheduled to work or by a nonworking weekend. If the employee seeks to establish that a new six-week period of continued wage payment began, the employee bears the burden of presenting evidence and proving in any legal dispute that the previous illness had completely resolved before the subsequent illness arose (BAG, judgment of December 11, 2019, Case No. 5 AZR 505/18).
Rules governing leave and benefits for employees caring for sick children
A distinction must be made when the employee’s child, rather than the employee, becomes ill. A child’s illness generally does not entitle the employee to continued wage payment under Section 3 EFZG. Instead, employees covered by Germany’s statutory health insurance system may qualify for child sickness benefits under Section 45 of Book V of the German Social Code (SGB V). In 2026, eligible parents may receive benefits for up to 15 working days per child and per parent, subject to a maximum of 35 days when they have multiple children. For single parents, the entitlement is up to 30 working days per child, subject to a maximum of 70 days when they have multiple children. These benefits may be available if the child lives in the same household, is under 12 years of age, and cannot be cared for by another person. A medical certificate must confirm the relevant circumstances. The current number of days of entitlement to child sickness benefits under Section 45 SGB V is based on a special provision that remains in effect for 2026. Unless this provision is extended, the standard statutory entitlement under Section 45 SGB V will apply again in 2027: 10 working days per child and per parent, up to a maximum of 25 days for parents with multiple children, and 20 working days for single parents.
In addition, Section 616 of the German Civil Code (BGB) may provide an entitlement to paid time off for such circumstances for periods of up to five days, provided that this provision has not been excluded or restricted by an employment agreement, a collective bargaining agreement, or another applicable rule. German case law has recognized corresponding entitlements, particularly under collective bargaining provisions addressing circumstances covered by Section 616 BGB (BAG, judgment of August 5, 2014, Case No. 9 AZR 878/12).
Challenging the validity of a medical certificate confirming incapacity for work
A properly issued medical certificate confirming incapacity for work carries substantial evidentiary weight. It is the legally prescribed and most important form of evidence that an employee is unable to work due to illness.
An inconvenient timing of the absence or the employer’s subjective suspicions alone therefore do not justify questioning the employee’s incapacity for work. The situation is different when specific factual circumstances give rise to serious doubts about whether the employee was genuinely unable to work. Such circumstances may undermine the evidentiary value of the medical certificate. In that event, the employee must provide a more detailed account of the incapacity for work and prove it if the matter becomes the subject of legal proceedings. In particular, the BAG has recognized the close timing between an employment termination and a medical certificate covering precisely the period up to termination as a circumstance capable of raising doubts about the certificate’s validity. This also applies when a series of medical certificates collectively covers the period until the employment relationship ends (see BAG, judgment of September 8, 2021, Case No. 5 AZR 149/21; BAG, judgment of December 13, 2023, Case No. 5 AZR 137/23).
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Ultimately, however, each case must be assessed based on all the relevant circumstances. For NPOs, this means that they should not rush to conclusions when faced with a potentially improper medical certificate. Concrete, documented facts are necessary; mere suspicions are not sufficient. If such facts exist, the organization should have the matter reviewed from an employment law perspective before refusing to continue paying wages during the employee’s sick leave.
How NPOs can handle sick leave in a legally compliant manner
For board members, executive directors, and HR professionals at NPOs, clear procedures are essential. The first step is to determine which provisions apply to the specific employment relationship. This includes identifying when a medical certificate must be submitted and how absences to care for a sick child must be handled.
Employees should, where appropriate, be reminded that they must report an inability to work due to their own illness or the illness of a child in their care without undue delay, preferably before the start of the workday. They should also be informed of when medical documentation is required. These measures help ensure that tasks can be reassigned promptly and that operational disruptions are avoided as far as possible.
Any irregularities associated with sick leave notifications should be documented as objectively and precisely as possible. If there are doubts about whether an employee was genuinely unable to work, the circumstances should be carefully investigated. The organization can then determine whether taking further action in the particular case is appropriate and likely to succeed.
Comprehensive legal advice on sick leave at NPOs in Germany
Especially in small organizations, a consistent and legally compliant approach to employee illness not only provides clarity but also helps preserve the trust between employers and employees that is essential to effective working relationships.
Our specialist employment law attorneys provide comprehensive advice on all aspects of incapacity for work and sick leave in Germany. We would be pleased to assist you with advice tailored to your organization’s individual circumstances.
