An employee who continues to work part-time during an ongoing sick-leave period can thereby lose the right to continued pay, even for a later period in which he did not work. That is the finding of a ruling by the Landesarbeitsgericht (LAG) Niedersachsen, Germany, dated 8 April 2026 (case number 8 SLa 571/25), which the trade publication Haufe Arbeitsschutz reported on 30 October 2026. The ruling is not yet final: an appeal is pending before the Bundesarbeitsgericht (5 AZN 321/26).
What did the court rule?
A salaried surgeon at a hospital was continuously on sick leave from 1 March 2024 until the end of January 2025. During that period he worked, spread across three separate stretches, a total of roughly two months, apparently without the employer objecting at the time. For the final weeks of the sick-leave period, from 7 to 27 January 2025, he nonetheless claimed continued pay, citing a recurrent depressive disorder. The employer refused to pay, arguing that the employee himself had decided when he worked and when he was sick. The LAG Niedersachsen rejected the claim.
Working during sick leave versus incapacity for work
The court drew an important distinction between the sick note as a formal document and incapacity for work as a legal fact. A standard medical certificate of incapacity carries high evidentiary value, but it is not irrebuttable. The fact that the surgeon worked during several separate periods, together with his own description of his symptoms as "fluctuating," undermined, in the LAG’s view, the evidentiary value of the certificate for the entire period of sick leave, including the disputed weeks. As a result, the burden of proof shifted back to the employee: he had to specify concretely which symptoms occurred on which days and to what extent. Because he failed to do so, the court did not need to hear the witness evidence he had offered; doing so would, in the LAG’s view, have amounted to an impermissible "Ausforschungsbeweis" — an exploratory fishing for evidence without sufficient factual grounding.
Context
Germany’s Continued Remuneration Act (Entgeltfortzahlungsgesetz, EFZG) grants employees who become incapacitated through no fault of their own, in principle, six weeks of continued pay (Section 3 EFZG). A properly issued certificate of incapacity for work serves as the primary form of evidence (Section 5 EFZG) and, under case law, carries high evidentiary weight, but it is not a statutory presumption: the court weighs the evidence freely. Only once the employer puts forward concrete, objective facts that cast doubt on the incapacity does the burden of proof shift back to the employee, who must then substantiate his symptoms in more detail.
What does this mean for HR and absence policy worldwide?
For HSE and HR professionals outside Germany, this ruling is relevant mainly because it shows how differently countries allocate the burden of proof in cases of sickness absence. How much weight a medical certificate carries as proof of incapacity for work varies by country; German case law gives employers room to challenge that evidentiary value with concrete facts about an employee’s conduct. That makes careful, consistent absence recordkeeping important for multinational organisations that want to design absence policy centrally while still respecting local employment law. The ruling is no licence to withhold continued pay from every employee who works part-time during sick leave: this case turned on an accumulation of concrete, undisputed facts together with a vaguely substantiated claim. The distinction between the sick note as a formality and incapacity for work as a factual state remains the crux: only the latter entitles an employee to pay.
Source: Kein Lohn trotz Krankschreibung: Wer zwischendurch arbeitet, muss Erkrankung konkret belegen, 30 October 2026
Additionally researched: Arbeitsunfähigkeitsbescheinigung – und ihr Beweiswert (Rechtslupe), Erschütterung des Beweiswerts einer Arbeitsunfähigkeitsbescheinigung bei zwischenzeitlicher Arbeitsleistung (anwaltonline), Erschütterung des Beweiswerts der Arbeitsunfähigkeitsbescheinigung (MTR Legal)
