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Employment Law 4.0 – Obligation to present certificate of incapacity for work no longer required

On June 6, 2019 (to the Article), we reported on the certificate of incapacity for work via WhatsApp. We pointed out an option offered to employees by an amendment of the Professional Code of Conduct for Physicians and the lifting of the ban on remote treatment while warning against misuse of the certificate of incapacity for work via WhatsApp. The legislator has now taken direct action in the Bureaucracy Relief Act III to digitize the certificate of incapacity for work or its processing. Regrettably, there are still open questions arising from the law, which was passed by the Federal Council on November 08, 2019.

Accordingly, employers may no longer wait until employees present the analog certificate of incapacity for work. Instead, in accordance with Section 109 Social Code SGB IV, employers should be able to use a portal of the health insurance funds to obtain digital information about the employees’ incapacity for work, which employees must continue to notify in person. Employers may therefore access substantial information of the incapacity for work online (employee name, duration, date of determination). Physicians must provide the relevant data to the health insurance funds.

Section 5 Continuation of Remuneration Act consequently introduces a new paragraph 1a. From January 1, 2022 on, employees who are members of a statutory health insurance fund will no longer have to submit a certificate of incapacity for work to their employers, if this is necessary at all because the incapacity for work lasts longer than three calendar days (Section 5(1) sentence 2 Continuation of Remuneration Act). It will be sufficient for employees to have a certificate of incapacity for work issued by a physician stating the existence of the incapacity for work and its likely duration. Disputes and warnings relating to the issue of whether and by what means employees correctly submitted the certificate of incapacity for work will then be irrelevant. Upon receipt of the notification from the physician, the health insurance fund must draft a notification for employers to retrieve containing information on the name of the employee, the beginning and end of the incapacity for work, the date of issue, and whether it is an initial or follow-up notification.

It is regrettable, though, that the intended new regulation poses another set of problems:

  • For one, there is an obvious legal error in setting up the procedure. Section 7(1)(1) Continuation of Remuneration Act allows employers to refuse to continue to pay remuneration unless employees submit a certificate of incapacity for work. It must have been overlooked to adapt this provision. Additionally, it is unclear what will happen if physicians fail to transmit the data to the health insurance funds in due time.
  • On the other hand, employers’ monitoring options will be restricted. They can no longer recognize which physician issued the certificate of incapacity for work. This is relevant, for example, in connection with sickness absences that are submitted via WhatsApp as we critically noted in the past (to the Article).
  • It will further be more difficult to check whether a new initial certificate from another physician submitted immediately after the expiry of the 6-week continued payment period really certifies a new illness.
  • When illnesses are overlapping, there is actually a uniform insurance case given, with the claim to continued payment of remuneration ending after 6 weeks. If the health insurance fund determines on the basis of the information on the diagnosis contained in the notifications according to Section 295(1) sentence 1 no. 1 SGB V and additional data that the continued payment of remuneration in the case of illness expires due to prior periods of illness for an employer, it will send the respective employer a report with the information on the relevant prior periods of illness.
  • Employers must therefore even more rely on the assessments of health insurance funds than in the past. The insurance funds, however, are not interested in establishing a uniform insurance case for several illnesses exceeding a total of six weeks, but in presuming new insurance cases at employers' expense.

Simplified bureaucracy through digital processing of the certificate of incapacity for work is therefore offset by the disadvantages of legal uncertainty and the potential for dispute where employers harbor doubts about the incapacity for work or genuine initial illnesses of employees. It is hoped that the legislator is yet to add improvements to take into account the issues that are being criticized.