Introduction of the electronic certificate of incapacity for work (eAU)

The amendments to the law on the electronic certificate of incapacity for work (eAU for short) have changed the obligation of insured employees to submit a certificate of incapacity for work to their health insurers. This change will take effect on October 1, 2021, but changes are also on the horizon for employment relationships. Effective July 1, 2022, the obligation of employees to submit a certificate of incapacity for work to their employers will be modified. Both employees and employers will have to adapt to these changes. 

However, this is not the first time we have reported on certificates of incapacity for work. At the beginning of 2020, we already provided information on digitally performed treatments and sick notes and the probative value of certificates of incapacity for work issued as a result (“A few clicks to online sick notes…”; https://pwwl.de/mit-ein-paar-klicks-zur-online-krankschreibung/).

Evidential value of certificates of incapacity to work following remote diagnoses

Our conclusion was that certificates of incapacity for work issued following such a remote diagnosis have no probative value, or at best only a very low probative value. This applies in any case to the type of treatment of the Hamburg start-up mentioned in the earlier blog post, where a few clicks on an Internet page were sufficient to issue a certificate of incapacity for work without the doctor seeing the patient at any time. 

This may be judged differently in the context of elaborately conducted consultations by means of a video link. But here, too, the requirements for proper treatment are high. A doctor must be able to obtain an overall picture of the patient’s state of health. The physician must be able to recognize special features and, if necessary, examine them more closely and evaluate them with regard to their effects on the ability to work. So-called remote examinations are subject to a special medical duty of care. If these requirements are not met, a certificate of incapacity for work need not be accepted as proof of incapacity for work.

Employers should therefore develop a certain sensitivity with regard to remote diagnoses. If the employer becomes aware of such a form of treatment, it is worthwhile from the employer’s point of view to critically question the incapacity for work as well as the certificate of incapacity for work issued in individual cases if there are doubts.  

Introduction of the electronic certificate of incapacity for work

In addition to this topic, we would like to inform you in this article about the (upcoming) introduction of the so-called electronic certificate of incapacity for work.

Previous legal situation 

In the event of incapacity for work, the employee was previously obliged under Section 49 (1) No. 5 of the German Social Code, Book V (SGB V) to report his incapacity for work to his health insurance fund and also to submit the certificate of incapacity for work in the event of a corresponding subsequent request. In the relationship of the insured employee to his health insurance fund, non-compliance with these obligations can justify a suspension of the sick pay claim, but without such a breach of duty towards the health insurance fund having an effect on the employment relationship of the insured employee with his employer.

In the case of incapacity for work, the employee was previously obliged vis-à-vis the employer under Section 5 (1) EFZG to notify the employer of the incapacity for work and its expected duration. On the other hand, the employee also had the obligation to submit to his employer a certificate of incapacity for work on the existence of the incapacity for work as well as its expected duration, if the incapacity for work lasted longer than three calendar days or if the employer requested its submission at an earlier point in time.

What is new?

In order to reduce bureaucracy, these obligations of the employee have now been amended by the introduction of the so-called electronic certificate of incapacity for work:

The first change was made to the employee’s obligation to notify the health insurance fund. If incapacity for work is established after a medical examination, the attending physician has to record the established incapacity for work data since October 1, 2021 in accordance with Section 295 (1) Sentence 1 No. 1 of the German Social Code, Book V (SGB V) and transmit it to the corresponding health insurance fund of the insured employee on his or her own responsibility. The insured employee’s obligation to notify his or her health insurance fund no longer applies.

The more relevant changes for employers are made by Section 109 SGB IV and Section 5 (1a) EFZG, which will apply from July 1, 2022. According to § 109 SGB IV, the health insurance fund must provide the employer with the name of the employee, the beginning and end of the medically determined incapacity for work, the date of issue and a designation as initial or subsequent notification in electronic form as a notification for retrieval after receipt of a notification of incapacity for work by the physician. The health insurance fund must thus enable employers to retrieve an electronic certificate of incapacity for work. If the employer wishes to receive a certificate of incapacity for work, he must in future use this retrieval procedure from the health insurance funds. 

As a result of this electronic reporting procedure, the obligation of employees to submit a certificate of incapacity for work provided for in Section 5 (1) sentences 2 to 5 EFZG will no longer apply, which is regulated by the new Section 5 (1a) sentence 1 EFZG. Employees remain only obliged to notify the employer without delay of their incapacity to work and its expected duration. In addition to the obligation to notify, Section 5 (1a) sentence 2 EFZG requires employees to present themselves to a physician at the times specified in Section 5 (1) sentences 2 to 4 EFZG, to establish the existence of an incapacity to work and its probable duration and to obtain from the attending physician a properly issued, i.e. in particular written, certificate of incapacity to work in accordance with Section 5 (1) sentences 2 and 4 EFZG containing the data intended for the employer. However, this certificate of incapacity for work is no longer to be presented to the employer, but only for the employer’s own purposes of securing evidence. In the future, the employer will no longer be able to demand the presentation of this certificate and is referred to the retrieval procedure.

Restrictions

The aforementioned changes do not apply to employees who are not covered by statutory insurance. The same applies in the case of marginal employment in private households or in the case of a determination of incapacity for work by physicians who do not participate in SHI-accredited medical care. The latter is also the case for physicians residing abroad. In all these cases, the current legal situation remains unchanged.

Conclusion

Employers must adapt their internal processes if they want to continue to receive a certificate of incapacity to work as proof of their employees’ incapacity to work in the future for the standard case of an employee with statutory insurance and corresponding treatment by panel doctors. For this purpose, they are referred to the retrieval procedure and the receipt of the electronic certificate of incapacity for work.

Employees retain the paper certificate as a statutory means of proof, in order to be able to prove the existence of incapacity for work as a prerequisite for continued payment of remuneration in accordance with Section 3 EFZG, in particular in cases of disruption (such as a failed transmission in the electronic procedure), both extrajudicially and procedurally.