Retroactive Sick Note in Germany – Definition, Legal Framework & HR Guide

A retroactive sick note is a medical certificate that retrospectively certifies incapacity to work for a period before the doctor's visit – backdated by a maximum of three calendar days, including weekends and public holidays. It is only permitted in justified exceptional cases and is at the discretion of the treating physician. The frequently cited "7-day rule" does not exist: it is a widespread myth.

What Is a Retroactive Sick Note?

A retroactive sick note – formally known as a retroactively issued certificate of incapacity for work (Arbeitsunfähigkeitsbescheinigung, AU) – certifies that an employee was already unable to work before the date of the doctor's appointment. As a rule, a sick note is only issued from the day of the medical examination onwards. The retroactive variant represents a legal exception under German employment law and is subject to strict conditions.

Key Distinction: Sick Notification vs. Sick Note

These two terms are often confused in everyday use, but they refer to different things:

Sick notification (Krankmeldung): The employee's notice to their employer that they are ill. This is typically given on the first day of illness – by phone, email, or via internal company systems. A sick notification does not replace a medical certificate.

Sick note / AU (Krankschreibung): The official medical certificate confirming incapacity for work. Under § 5 of the German Continued Remuneration Act (Entgeltfortzahlungsgesetz, EntgFG), employees must submit this certificate to their employer no later than the fourth day of illness. Employers may contractually require earlier submission – even from the very first day.

What Is the eAU and How Does It Relate?

Since January 2023, the electronic certificate of incapacity (elektronische Arbeitsunfähigkeitsbescheinigung, eAU) has become the standard in Germany. Physicians transmit the certificate digitally and directly to the employee's statutory health insurer (Krankenkasse). Employers then retrieve the data from the insurer themselves – the former paper "yellow form" is no longer issued. Retroactively issued certificates are also transmitted via this digital process.

Legal Basis: § 5 AU-RL and § 5 EntgFG

What Does the Law Actually Say?

The central legal basis is found in § 5 paragraph 3 of the Incapacity for Work Guidelines (Arbeitsunfähigkeits-Richtlinie, AU-RL) issued by the Federal Joint Committee (Gemeinsamer Bundesausschuss, G-BA). In essence, it states that incapacity for work should generally not be certified for any period prior to the first medical consultation. However, backdating is permitted as an exception – for a maximum of three calendar days – provided the physician can establish through examination that the illness already existed at an earlier point in time.

Additionally, § 5 EntgFG governs employees' notification and documentation obligations: the AU must be submitted to the employer no later than the fourth day of illness.

Debunking the Myth: The 7-Day Rule Does Not Exist

A widespread misconception: many employees believe they can obtain a retroactive sick note for up to seven days. This so-called "7-day rule" has no legal basis for retroactive sick notes.

The confusion often arises from the fact that since December 2023, telephone-based sick notes have been permanently available for established patients in Germany – up to 5 days for minor illnesses (by phone) and up to 7 days via video consultation. However, these rules apply exclusively to current and future incapacity – not to retroactive certification. For a retroactive AU, the rules remain unchanged: a maximum of 3 calendar days and an in-person examination is mandatory.

How Far Back Can a Sick Note Be Backdated?

The 3-Day Rule Explained (Including Weekends)

Under § 5 para. 3 AU-RL, a physician may backdate a certificate of incapacity by a maximum of three calendar days. Weekends, public holidays, and working days are all counted equally. There is no special provision that extends the period over a long weekend.

Important: "Calendar days" means that Saturday and Sunday are fully included in the count. An employee visiting the doctor on a Monday can be backdated to Friday at the earliest – not to the Wednesday or Thursday of the previous week.

Example: Falling Ill on a Friday, Doctor's Visit on Monday

Maria Müller falls ill with a high fever on a Friday evening. Since no regular GP surgery is open over the weekend and her condition does not require emergency care, she visits her family doctor the following Monday. After a thorough examination, the doctor can confirm that Maria has been unfit for work since Friday. She can therefore issue the AU backdated to Friday – three calendar days (Saturday and Sunday are included in the count). This is the most common and legally straightforward application of the retroactive sick note.

Requirements: When Will a Doctor Issue a Retroactive Certificate?

Valid Reasons for a Delayed Doctor's Visit

A retroactive sick note requires that there was a plausible reason why an earlier visit to the doctor was not possible. Typically accepted reasons include:

• Falling ill on a weekend or public holiday when no practice was accessible
• A severe illness that made it impossible to leave home (e.g., high fever, severe dizziness)
• Emergency inpatient treatment during which no AU was initially issued
• Acute worsening of a pre-existing condition

Simply claiming to have been ill is not sufficient. The physician must be able to establish medically – through the current examination and any available findings – that the illness genuinely existed at an earlier point in time.

Medical Discretion – No Legal Entitlement

There is no legal entitlement to a retroactive sick note. The decision rests entirely with the treating physician. If the doctor declines to backdate the certificate, the period in question remains without documented proof of incapacity. In that case:

• There is no entitlement to continued remuneration for the undocumented days
• The employer may withhold salary for that period
• In the event of repeat occurrences, employment law consequences such as a formal warning (Abmahnung) may follow

Important: Telephone-based backdating is expressly not permitted (§ 4 para. 1 AU-RL). A retroactive AU always requires an in-person examination.

What Employers Need to Know About Retroactive Sick Notes

Evidentiary Value and Burden of Proof

A properly issued retroactive certificate of incapacity carries full evidentiary value. This means: while an employer may challenge the certificate, they bear the full burden of proof in doing so. In practice, it is extremely difficult for employers to successfully contest a physician's assessment.

Employers are not entitled to ask about the diagnosis – the reason for illness is not noted on the AU and does not need to be disclosed.

If retroactive sick notes accumulate for a particular employee, this may, however, provide grounds for a clarifying employee discussion. Any such conversation should be conducted factually and without accusation, since the employer cannot draw reliable conclusions about misuse as long as valid AUs are on file.

Continued Remuneration and the eAU Process

Where a valid retroactive AU is on file, the employee is entitled to continued remuneration for the entire certified period under § 3 EntgFG – for up to six weeks. To qualify for statutory sick pay (Krankengeld, from week 7 onwards), uninterrupted AU documentation is mandatory. Retroactive certificates can help prevent unintended gaps in that documentation.

Since the introduction of the eAU, physicians transmit the certificate digitally and directly to the statutory health insurer. Employers no longer receive a paper certificate and must retrieve the AU data themselves from the relevant insurer – including for retroactively issued certificates.

HR Checklist for Retroactive Sick Notes

• Verify receipt of the eAU notification: Has the health insurer made the AU data available?
• Check the backdating period: Does the backdating fall within the permitted 3 calendar days?
• Document the absence: Record the period of incapacity accurately in HR systems
• Trigger continued remuneration: Ensure salary continuation is processed for the full AU period
• Monitor patterns: If retroactive AUs recur frequently, consider a clarifying conversation
• Do not ask for the diagnosis: The reason for illness is not relevant and may not be demanded

Frequently Asked Questions About Retroactive Sick Notes

How far back can a doctor backdate a sick note?

A physician may backdate a certificate of incapacity by a maximum of three calendar days (§ 5 para. 3 AU-RL). Weekends and public holidays are included in the count. The exact period is at the physician's discretion – backdating by just one day is also possible.

Is there a 7-day rule for retroactive sick notes in Germany?

No. The so-called "7-day rule" does not apply to retroactive sick notes. Since December 2023, telephone-based sick notes allow certification of up to 5 days (by phone) or 7 days (by video) – but this applies exclusively to current or future incapacity, not to backdated certificates.

When is a retroactive sick note permitted?

A retroactive AU is permitted when there was a valid reason that made an earlier doctor's visit impossible (e.g., weekend, severe illness) and the physician can unambiguously diagnose the illness retroactively. A bare assertion is not sufficient.

Is a doctor obliged to issue a retroactive sick note?

No. There is no legal entitlement to a retroactive sick note. The decision rests entirely with the treating physician. If backdating is refused, there is no entitlement to continued remuneration for the uncertified period.

Can a retroactive sick note be issued by telephone?

No. For retroactive sick notes, an in-person medical examination is mandatory under § 4 para. 1 AU-RL. Telephone-based certification applies expressly only to current and future incapacity, not to backdating.

Can an employer refuse to accept a retroactive sick note?

A properly issued retroactive AU carries full evidentiary value. While an employer may challenge it, they bear the full burden of proof – which is barely achievable in practice. As long as the AU has been correctly issued, the entitlement to continued remuneration stands.

What happens if no retroactive AU is issued?

Without an AU covering the relevant period, the absent days are treated as unexcused. The employer is then not obliged to pay continued remuneration and may withhold salary for those days. In the event of repeat occurrences, employment law consequences such as a formal warning are also possible.

Conclusion

The retroactive sick note is an important safeguard for employees who were genuinely unable to visit a doctor immediately due to illness. The legal position is clear: a maximum of three calendar days, only following an in-person examination, only in exceptional circumstances, and always subject to medical discretion. The widespread "7-day rule" is a myth with no legal foundation for retroactive certificates.

For HR professionals, accurate documentation is key: a valid retroactive AU secures the entitlement to continued remuneration and protects both parties from legal uncertainty. Where absences recur frequently, an open employee discussion is advisable – fact-based, non-accusatory, and focused on finding solutions.

Find more HR knowledge for your day-to-day work in the Aivy HR Lexicon.

Sources

• Incapacity for Work Guidelines (AU-RL), in particular § 5 para. 3. Federal Joint Committee (Gemeinsamer Bundesausschuss, G-BA), last amended 2023. https://www.g-ba.de/richtlinien/2/
• Continued Remuneration Act (Entgeltfortzahlungsgesetz, EntgFG), § 5 (notification and documentation obligations). Federal Ministry of Justice, current version. https://www.gesetze-im-internet.de/entgfg/__5.html
• National Association of Statutory Health Insurance Physicians (KBV): Telephone-based sick notes – permanent regulation from December 2023. https://www.kbv.de
• GKV-Spitzenverband: Electronic certificate of incapacity (eAU) – information for employers. https://www.gkv-spitzenverband.de