At the end of 2019, the German legislative adopted the third Act on relief from excessive bureaucracy (Bürokratieentlastungsgesetz III, BEG III), paving the way for the introduction of the electronic certificate of incapacity for work (elektronischen Arbeitsunfähigkeitsbescheinigung, eAU). This will digitalise a large portion of the 77 million certificates issued annually, each of which has up to 4 counterparts. It foresees various “digitalisation phases”. Phase 1 involves the digital transfer of certificates of incapacity for work from the panel physician to the health insurance provider. Phase 2 will replace the “yellow certificate” with a data record. Originally, Phase 2 was to become binding on 1 July 2022. However, the Corona pandemic has delayed the technical implementation; Phase 2 will now start on 1 January 2023. Technical problems are not the only hurdle to implementing Phase 2. It raises numerous labour law issues, too.
Not for all employees
First, it should be mentioned that even after the implementation of Phase 2, an eAU will not be issued for all employees. The certificate of incapacity to work in paper form will still have to be used for certain employees. These include employees who have private health insurance and those treated by a doctor who is not a panel physician. The same applies to rehabilitation and preventative medical institutions, and where the medical certificate is from a doctor in a foreign country.
Retrieval by employers
In the future, where the employee does fall within the scope, they will no longer have to present their employer with a certificate of incapacity to work. The employer will instead retrieve the data from the health insurance provider. The following must be kept in mind:
Employers are not entitled to take a “shot in the dark” and request data from health insurance providers without a reason. A request may only be made after an employee has indicated an inability to work. In addition, due to some technical hurdles, the eAU will not necessarily be available immediately after the doctor has confirmed the inability to work. As doctors must sign the data using a qualified electronic signature, delays in the transfer can be expected. Health insurers therefore recommend that employers first try to retrieve an eAU on the day after the employee has seen the doctor. This does not release the employee from the obligation to inform the employer of their inability to work without delay.
Continued payment of wages and right to refuse performance
One legal issue concerns the right of the employee to refuse to work. A new subsection 1a is introduced into § 5 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz, EFZG), which releases employees with statutory health insurance from the obligation to present a certificate of inability to work. There will no longer be a “yellow certificate” to give the employer. However, until now, the presentation of (or failure to present) this “yellow certificate” was the basis for the employee’s right to refuse to work under § 7 (1) No. (1) of the EFZG.
While the introduction of the new subsection 1a brings § 5 of the EFZG into line with the changed circumstances, no changes are currently planned for § 7 of the EFZG. This means that there is no express statutory rule that would justify the employer’s refusal to continue paying the employee’s wages where the employee fails to meet their obligations to have a doctor confirm their incapacity to work. That this was not what the legislator intended is clear from both the eAU’s aim of reducing bureaucracy and from the name of the BEG III. It is not obvious why the legislator would also want employers to bear the responsibility for the failure to present a doctor’s certificate confirming the inability to work (in time). To rectify this situation and close the gap in the legislation, employers should at least be given the right to refuse to perform their duties when an employee fails to fulfil their obligation to have their incapacity for work determined by a doctor (in due time). In the future, the employer will also be justified in contractually moving the material time for this to the first day of the incapacity for work.
In this respect, standard provisions in employment contracts which require the employee to present a certificate of inability to work from the first day of illness will be ineffective. For older contracts, such clauses should be interpreted as being valid under the new rules so that, after the entry into force of the new legal status, the employee is required to have their inability to work confirmed on the first day of said inability, rather than requiring the employee to present a doctor’s certificate on the first day.
Nonetheless, employers should still aim to adapt such clauses to bring them into line with the new law, especially if other changes must be made to the employment agreement anyway. Employers should ensure that new contracts take the new laws into account and change the focus of the relevant contractual provisions to the determination by a doctor rather than the presentation of the doctor’s certificate. For the transitional period, future changes to the law can be anticipated and a two-tier approach can be used accordingly.
Evidentiary value of the eAU
Finally, the question arises as to whether the eAU will have the same evidentiary value as the conventional certificate of inability to work. Conventional certificates allowed the employer to draw conclusions based on indications. Frequently changing doctors or the use of doctors whose practices are located far away from the employee’s home could, for example, raise suspicions about the validity of the inability to work. As things currently stand, the employer will not be provided such information because the data received will no longer indicate which doctor provided the certificate. If the amount of information in the certificate is reduced, the evidentiary value of the certificate should be reduced accordingly.
The eAU will result in a reduction in the level of bureaucracy, at least once digital communication between doctors, health insurers and employers is properly established. Employers must also consider several new employment law features early on. In particular, employers should address the question of how delays and glitches in the transfer of electronic certificates of inability to work will be dealt with in the future. Clauses in employment contracts should also be slowly adjusted to bring them into line with the new system.
Dr Anne Dziuba