Contents
Two separate duties
The duty to notify requires the incapacity and its expected duration to be reported without delay, that is without culpable hesitation and as a rule before work starts. The duty to provide proof requires a medical certificate where the incapacity lasts longer than three calendar days, to be submitted by the following working day at the latest.
The two duties are independent of each other. Anyone submitting the certificate on time but not having phoned in has still breached the duty to notify.
The employer can require the certificate earlier
Under section 5(1) sentence 3 EFZG the employer is entitled to require the certificate to be submitted earlier, including from the first day. No reason has to be given, and no suspicion is required.
A uniform rule in a works agreement makes sense. Where a works council exists, a general instruction is subject to codetermination; an instruction in an individual case is not.
Illness during leave
Where employees become unfit for work during leave, the days evidenced by a medical certificate are not counted against the annual leave (section 9 BUrlG). They get those days back.
A medical certificate is required, and for every day that is not to be counted. The three-day rule in section 5 EFZG does not apply here: anyone wanting a single day of leave back needs a certificate for it.
Common mistake
The certificate gets described as required "from the fourth day", although the deadline runs differently: it applies where the incapacity lasts longer than three calendar days, and submission is due on the following working day. For an illness starting on a Thursday that is not the Monday.
This is not legal advice; for a specific case at your workplace you are better off asking someone qualified to give it.
- Section 5(1) EFZG
- „The employee is obliged to notify the employer of the incapacity for work and its expected duration without delay. Where the incapacity lasts longer than three calendar days, the employee has to submit a medical certificate of the existence of the incapacity and its expected duration by the following working day at the latest.“
Published by: AMNAU GmbH
Editorial responsibility: Ugur Aydogan, Product development.
Last reviewed: 2 September 2026