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Employment Law 4.0 – Certificate of incapacity for work via WhatsApp
There are regularly cases in employment law practice that cause disagreements between employers and employees about the existence of incapacity to work and the associated entitlement to continued payment of remuneration. In some cases the circumstances of the notification of illness may appear questionable, in other cases employees are on vacation at the time of the incapacity to work or they are doing yardwork or other work during the time of the alleged illness. The medical certificate of incapacity for work and its duration is the central means of proving incapacity for work.
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New features offered by telemedicine now allow workers to obtain certificates of incapacity for work via the Internet. Prior to the amendment of the (model) professional code for physicians, it was not possible to use this technological method because physicians were banned from performing remote treatments. This prohibition was loosened as part of the amended (model) professional code, which was resolved by the Federal Medical Association on December 14, 2018. As a rule, medical treatment should continue to be performed in person, while communication media may be used in a supporting function. Under certain circumstances, however, the exclusive consultation or treatment via communication media is permitted in cases where this is medically justifiable and the necessary medical care is being maintained.
Taking advantage of the new telemedical options, the website www.au-schein.de advertises offering “sick notes without visiting a doctor.” After answering a few questions and paying a fee of EUR 9, a certificate of incapacity for work can be “ordered” online and will then be sent to the employee by WhatsApp and by postal mail. It is thus possible to obtain a certificate of incapacity for work without having to consult a physician in person or by phone.
In view of these developments, there are authors in legal literature who express doubts as to whether it will be possible to maintain the high probative value of the certificate of incapacity for work without restriction.
Under Section 3(1) German Continued Remuneration Act, employees are entitled to continued payment of remuneration in cases of illness by the employer for a period of up to six weeks if employees have not caused the incapacity to work. The relevant distribution of the burden of proof and presentation requires that the plaintiff employee must present and prove the incapacity to work before the court in the event of a dispute. The evidence provided by law and stipulated in Section 5(1) Continued Remuneration Act and Section 7(1)(1) Continued Remuneration Act is the medical certificate of incapacity for work. It does not establish a legal, but an actual presumption that the employee was incapacitated for work. According to previous jurisdiction of the Federal Labor Court, a certificate of incapacity for work properly issued in Germany has high evidential value. In other words, the proof of incapacity for work due to illness will normally be considered to have been furnished in court if employees are able to produce a medical certificate of incapacity for work.
Employers are able to undermine this evidential value by presenting and proving circumstances which give rise to serious doubts in court as to the factual correctness of the incapacity to work due to illness. Only if employers succeed in doing so must employees submit their illness in more detail than before and prove it by other means.
The online sick note
The functionality of the www.au-schein.de website is simple. After answering a few questions about the symptoms of a cold and their duration, employees are able to choose whether they feel unable to work for 1, 2, or 3 days. After payment, the certificate of incapacity for work is sent via WhatsApp for submission to the employer, while a copy for the health insurance institution is sent by postal mail. For the time being, it is only possible to order sick notes due to a cold. In the future, however, the model is to be extended to include corresponding certificates for “gastrointestinal influenza” and “lower back pain.”
Reduction of the evidentiary value
Obviously, the existence of such online service providers makes it considerably easier to abuse certificates of incapacity for work. This new area of telemedicine is threatening the high evidential value of the certificate of incapacity for work. An online certificate of incapacity for work is formally correct within the meaning of Section 5(1) Continued Remuneration Act, i.e., employees are meeting their obligation to provide evidence as intended by the statutory provision. The presumption that the certificate of incapacity for work has a high evidential value requires, however, that it has been issued on the basis of a personal medical examination. Since a certificate of incapacity for work does not reveal whether it was issued via the Internet or after a personal examination, the mere existence of online certificates of incapacity for work has a negative impact on the evidential value of such certificates in general.
In our view, it is therefore always necessary to find out how the certificate of incapacity for work submitted by the employee was issued before it can serve as evidence of incapacity for work. As a result, the employee’s position is weakened with respect to the burden of proof and presentation. Employees must now first demonstrate and prove that the certificate of incapacity for work was issued on the basis of personal medical treatment. If this is not possible, they must continue to submit about their illness in further detail and prove their inability to work by other means.
The new options offered by telemedicine facilitate the abuse of certificates of incapacity for work and thus have a negative impact on their probative value in court. If there are justified doubts as to the origin of a certificate of incapacity for work, employees should first be asked to submit further details. Where it is obvious that the certificate of incapacity for work was issued with the assistance of telemedicine, continued payment of remuneration should be suspended. Employers may justify their actions by pointing out that the certificate of incapacity for work was not properly obtained because no personal medical examination had taken place.
It will then be up to the employee to explain and prove that the certificate of incapacity for work was issued after a personal medical examination. This may be done, for example, by a corresponding declaration of the treating physician. Where such proof is not possible, the employee must further substantiate the presentation with respect to the incapacity for work and thus prove the illness by other means.