The Federal Chancellor has declared sick notes being obtained over the telephone to be an issue. But what applies if employees make it even easier for themselves and buy a doctor’s note (DN) on the internet? The Hamm Regional Labour Court (Landesarbeitsgericht, LAG) handed down a verdict in relation to this issue that is of practical relevance to both companies and employees.
Admissibility of DNs obtained through telemedicine
The DN is a central instrument in employment to provide evidence that an employee was ill. The courts still place a high evidentiary value on them. In accordance with the current legal provisions it is not mandatory for employees to visit a doctor in person to provide evidence that they were ill, even after the Covid-19 pandemic. Under certain circumstances, for example in the case of an initial certificate for a maximum period of illness of three days, a DN may be issued after a video or telephone "examination”.
However, in practice an increasing number of DNs are being submitted which have been obtained on the internet without the employee having been in contact with a doctor at all. In such cases the DN is issued after an online questionnaire has been completed without there being any contact with a doctor, either in person, on the telephone or in a video call. The DN is issued in return for payment of a fee and made available for the employee to download as a PDF document.
The judgment of the Hamm LAG
The Hamm LAG dealt with such a DN in its judgment dated 5 September 2025 (14 Sla 145/25). In this case the employee had submitted a DN to their employer which had been obtained by filling out an online questionnaire without there having been any contact with a doctor in person or on the telephone. The visual format of the DN was inspired by the earlier paper forms (the “yellow note”). The employer had attempted to obtain an eDN from the health insurance company but was unsuccessful.
The LAG held that the extraordinary termination without notice was valid. The crucial question was not whether the employee was actually unable to work, but whether the employee had provided fraudulent evidence of their inability to work. In the opinion of the court an employee has acted unlawfully if they present a DN, the layout and content of which suggests that they have been examined by a doctor, but no actual doctor's appointment has taken place and this therefore causes the employer to continue to pay the employee where this is not warranted.
In addition, the LAG ranked the evidentiary value of the DN. It held that although a DN generally does have a high evidentiary value this may, however, be rebutted if the evidence provided by the employee that they were ill does not conform with the requirements of the Inability to Work Guidelines (Arbeitsunfähigkeits-Richtlinie).
Implications for companies and employees
After the judgment of the Hamm LAG there is therefore the threat of extraordinary termination if a DN is produced without actually being in contact with a doctor but gives the impression that the employee has been examined by a doctor. But how can such fake DNs be detected?
- First of all and most importantly, when a DN has been purchased online it is not possible to access an eDN. As a result employees (even if they are a member of the statutory health insurance (gesetzliche Krankenversicherung, GKV)) produce a classic “yellow note” from a private doctor (as an A4 print out or PDF document).
- Most of the time the DN will state “...unable to work due to remote examination only by way of questionnaire”.
- Finally, a DN which has been purchased online will contain a scanned signature in the signature field alongside the doctor’s name and the extra text:
“Private telemedicine doctor
WhatsApp: *49...........
Email: Name [at] gmx.de”
Various employer associations and medical associations, such as the Lower Saxony Medical Association, hold a blacklist of suspected doctors:
- In addition, this information often fails to contain the address of the practice.
Should notice be given for extraordinary termination, a two-week notice period should be observed as per section 626 (2) of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The mandatory requirement to consult an existing Works Council must also be carried out within this notice period. If employers do not want to immediately resort to the harsh choice of termination, they can alternatively consider stopping paying the employee while the evidentiary value of a DN obtained without a doctor’s appointment is contested.
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