Employment Law2026-10-05

A doctor's note from day one of sickness — can my employer really insist on that now?

Your employer wants a medical certificate from the very first day you're off sick? They are already allowed to ask for this today — it isn't down to the planned reform. I explain the conditions and what happens if you refuse.

You’re unwell and you’ve reported your absence to your employer as usual. Then comes the message: from now on a medical certificate is to be provided on the very first day, not after three days. Perhaps you’ve also read about the government’s planned reform. So you’re asking yourself: is this new? Or was your employer entitled to do this all along?

In short

Yes, your employer can already ask for this today — quite independently of any reform. The law does set the duty to provide a certificate only from the fourth day of sickness. But it expressly allows an employer to require the certificate sooner — right down to the first day off sick. The reform proposal of 02/07/2026 would merely make this earlier certificate the statutory default. It is not yet in force: so far, there isn’t even a draft bill.

How I can help you

I check whether your employer’s instruction is valid and applies to you
I assess whether the employer is right to withhold continued pay in your case
I respond if they base a formal warning on an allegedly late or missing certificate
I advise you if the dispute turns into a dismissal

The legal basis: what applies without any special instruction

Under section 5(1) of the Continued Remuneration Act (Entgeltfortzahlungsgesetz, EntgFG), the general rule is this: you must notify your employer of your incapacity for work and its likely duration without undue delay. That is the duty to notify. It applies from the first day, regardless of any certificate. The medical certificate itself you normally only have to provide once the incapacity lasts longer than three calendar days. At the latest, that is the following working day — so in practice from the fourth calendar day.

But this three-day threshold is not a minimum protection you can rely on. The law expressly allows the employer to require the certificate to be provided earlier. This power is enshrined in the statute without any further conditions — the employer need not give reasons and need not show any suspicion of abuse.

How your employer has to give this instruction for it to be valid

For the earlier certificate to become binding on you, there has to be a recognisable instruction — not merely a general expectation. The following come into consideration:

a provision in your employment contract or a works agreement
a written or oral instruction given to you personally
an instruction under the employer’s right to direct work (Direktionsrecht) in accordance with section 106 of the Trade Regulation Act (Gewerbeordnung, GewO), under which the employer may specify the content and ancillary duties of the work in the exercise of reasonable discretion

The key point is this: the instruction must have reached you before it takes effect. If you didn’t know about the duty beforehand, you will generally not be bound retrospectively to provide a certificate from day one for a period of sickness already under way. If your employer only requires the earlier certificate partway through your current sick leave, that normally applies only to future instances of sickness.

What happens if you don’t provide the certificate in time

For many clients the real danger lies here, not in the certificate itself. Under section 7 EntgFG, the employer may withhold continued pay for as long as you fail to provide the certificate owed under section 5(1) EntgFG. This also applies where an earlier duty to provide it has been validly imposed.

This right to withhold payment is, however, excluded where the delay is not your fault. One example: the doctor’s surgery had no appointment left that same day, or the delay was beyond your control. But in the event of a dispute you must be able to set this out; blanket excuses are not enough.

If late or missing certificates recur despite a valid instruction, you face employment-law consequences going beyond the mere question of pay. If you persistently breach your duty, the employer may dismiss you on conduct-related grounds under section 1 of the Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG). If you deliberately and repeatedly disregard a clear instruction, in particularly serious cases even an extraordinary dismissal for good cause under section 626 of the Civil Code (Bürgerliches Gesetzbuch, BGB) may come into play. Section 1 KSchG requires, however, that the dismissal be socially justified. That is why the employer must, as a rule, first choose the milder measure and issue you with a formal warning before dismissing you.

The eAU, telephone sick notes and checks by the health insurer

With the electronic certificate of incapacity for work (elektronische Arbeitsunfähigkeitsbescheinigung, eAU), your doctor’s surgery normally transmits the data directly to your statutory health insurer. Your employer retrieves it from there. This does not release you from the duty to notify without undue delay: you must still report sick straight away. People with private health insurance are excluded from the eAU procedure and must continue to provide a certificate in paper form.

A telephone sick note remains possible under the current incapacity-for-work directive of the Federal Joint Committee (Gemeinsamer Bundesausschuss) and is legally equivalent to a certificate issued in person — even where your employer requires the certificate from day one. The government’s reform proposals of 02/07/2026 envisage abolishing this procedure with effect from 01/01/2027. But until a draft bill is presented and promulgated, the telephone sick note continues to apply unchanged.

Quite apart from the certificate, if your employer has doubts about your incapacity for work they can arrange an assessment by the Medical Service (Medizinischer Dienst), for instance where there are strikingly frequent short-term absences around weekends. The legal basis for this is section 275(1a) of the Social Code, Book V (Sozialgesetzbuch V, SGB V); the employer makes the application to your health insurer. This is a separate instrument and does not replace the duty to provide a certificate. Often, though, it is used together with a tightened duty of proof.

A typical case from practice

Over the course of six months an employee had been off sick five times for one or two days, mostly on Mondays or Fridays. The employer instructed all staff in one department by email that, in future, a certificate was to be provided from the first day of sickness. On the next day off sick, the employee only produced a certificate on the third day. The employer withheld continued pay for the first two days and announced a formal warning. The instruction was valid and had reached the employee in good time before the next bout of sickness. The refusal of payment was therefore justified in principle. The only open question was whether a formal warning was proportionate without a prior clear reminder of the new duty.

Common mistakes

Clients assume the three-day threshold in the statute is a fixed minimum protection — it is not.
The duty to notify (reporting sick straight away) is confused with the duty of proof (the certificate). The notification, however, is always due from day one, regardless of the certificate.
An oral or offhand instruction from the employer is often not taken seriously. It can nonetheless be valid.
Where pay is reduced because of a late certificate, no one checks whether the delay was genuinely the employee’s own fault.
Repeated breaches are underestimated, even though they can be the starting point for a later formal warning or dismissal.

If your employer has already coupled the earlier certificate duty with a formal warning, you should not let it rest there. The same is true if they level an accusation against you that points towards dismissal. I check whether you have actually breached your duty. I also check how you can defend yourself against a conduct-related dismissal based on it.

Frequently asked questions

Does my employer have to give reasons for the earlier certificate duty?

No. The law does not require the employer to give reasons, point to any suspicion or show any particular occasion in order to impose the earlier certificate. They can set this without giving any reasons.

Does the instruction also apply to an illness I already have?

As a rule, not retrospectively. If the earlier certificate duty is imposed only during an illness already under way, you must have known about it beforehand. Only then does it apply to the current case too — otherwise it takes effect only for future instances of sickness.

Can my employer dismiss me immediately for this?

A single late certificate does not usually justify a dismissal. Only once you breach the duty repeatedly and persistently despite a clear instruction, and the employer has as a rule issued you with a formal warning beforehand, can they dismiss you on conduct-related grounds or, in serious cases, extraordinarily.

What if I can’t get a doctor’s appointment on the first day?

Set out that the delay was beyond your control. One example: the surgery was unable to offer a short-notice appointment. In that case continued pay is not excluded, even if the certificate arrives later than instructed.

Does the planned reform affect me already now?

No. The proposals of 02/07/2026 have so far not even been presented as a draft bill and would take effect from 01/01/2027 at the earliest. For you, the only thing that counts today is whether your employer has validly imposed the earlier certificate.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-05.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me how and when your employer asked for the note from day one – I will take a look.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.