November 30, 2022

Volume XII, Number 334

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November 29, 2022

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November 28, 2022

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Disability Certificates in Germany

Telephone sick leave and video consultation

Due to the decision of the joint federal committee, since August 4, 2022, employees can get sick leave for up to seven days by telephone. The regulation applies for a limited period up to November 30, 2022 and only in the case of respiratory diseases. But what is the significance of a sick note? Which procedure should be observed? What else applies to sick leave using video consultation hours?

1. PRIOR EVIDENCE

A properly issued medical certificate of incapacity for work has a high probative value as evidence of incapacity to work due to illness. It does not justify a legal presumption with the result that only proof to the contrary would be admissible. However, it has the effect of an actual presumption as prima facie evidence. Companies must therefore shatter the prima facie evidence of the certificate of incapacity to work if they wish to refuse continued payment of wages or would like to deny incapacity for work for other reasons. For this purpose, facts must be presented that raise serious doubts about the inability to work due to illness (e.g. prior notification of the inability to work; repeated temporal connection with public holidays and/or vacation).

Insofar as certificates of incapacity to work – as required by law in Germany – distinguish between illness and incapacity to work, certificates of incapacity to work issued abroad also have the same probative value.

2. INCAPACITY DETERMINATION PROCEDURE 

According to § 4 of the applicable directive of the Federal Joint Committee on the assessment of incapacity for work and the measures for gradual reintegration according to § 92 paragraph 1 sentence 2 number 7 SGB V (AU-RL), the determination of incapacity for work has to be based exclusively on a directly personal or indirectly personal medical examination by means of a video consultation. The latter is only permissible if the illness does not rule this out anyway. In the case of video consultations, the period of the certificate should only exceed three days if the person whose incapacity to work is being decided on is already personally known from a doctor from previous contacts.

If these requirements are disregarded, it can be assumed that the certificate of incapacity for work does not meet the requirements of Section 5 EFZG and companies can therefore reject it as insufficient. Therefore, such a certificate cannot be given as prima facie evidence either.

However, an exception to this still applies due to the corona pandemic: According to § 8 Para. 1 S. 2 AU-RL, the determination of incapacity for work in the case of diseases of the upper respiratory tract that do not show any severe symptoms can also be made for a period of up to seven calendar days after a telephone anamnesis, namely by means of the personal medical conviction of the person assessed by detailed telephone questioning. The continuation of the inability to work can also be determined once for a further period of up to seven calendar days by means of a telephone anamnesis.

3. FORMAL REQUIREMENTS FOR DISABILITY CERTIFICATES 

Furthermore, it has not been clarified whether the certificate of incapacity for work within the meaning of Section 5 EFZG must be in writing in accordance with Section 126 BGB (original signature on paper). However, the prevailing opinion assumes that. A scanned signature is therefore generally not sufficient as proof of incapacity to work. Digitally issued certificates of incapacity for work therefore do not meet the legal requirements. Corresponding offers that are circulating on the Internet cannot, in case of doubt, provide prima facie evidence of incapacity to work, if only for formal reasons.

For reasons of practicability alone, certificates of incapacity for work are no longer sent in the original by post, but are sent as a scan or photo. This type of resource-saving approach is also acceptable to companies and is therefore widely accepted. Of course, companies can insist on presenting the original.

4. FUTURE: DIGITAL CERTIFICATE OF DISABILITY 

At first glance, the legal situation seems to follow the practice, which is already largely in place, from 2023 onwards. In fact, doctors will remain obliged to issue a certificate of incapacity for work (in paper form) from January 1, 2023. The main difference to the current legal situation will only be that companies can request the “data” on incapacity to work digitally directly from the health insurance company. According to the justification for the law, however, the analogous "yellow AU certificate" (with original signature) remains as precautionary evidence for employees.

Nevertheless, the basic obligation of employees to submit a certificate of incapacity for work will no longer apply in the future. It is therefore to be expected that significantly fewer problems will arise in the purely practical handling between employees and companies.

It has not yet been finally clarified whether and in which individual cases - in addition to disruptions to the digital retrieval option - the submission of the certificate of incapacity for work will still be relevant.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 240
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About this Author

 Gudrun Germakowski Employment Law McDermott Düsseldorf:
Partner

Dr. Gudrun Germakowski advises on all individual and collective aspects of labor and employment law. She focuses her practice on counseling in the field of complex severance processes and in negotiating with employee representatives (works councils and unions) in individual and restructuring projects. Gudrun also concentrates on advising clients in relation to contract design, with a particular emphasis on international assignment of employees, as well as developing and implementing compensation systems and company car arrangements.

Gudrun served her legal clerkship in the circuit...

+49 211 30211 224
Lukas Deutzmann Labor Lawyer McDermott Will Emery Dusseldorf
Associate

Lukas Deutzmann focuses his practice on employment law matters.

During his legal traineeship, Lukas gained experience working at the State Labor Law Court in Cologne and the Federal Ministry of Labor and Social Affairs. In addition to this, he also worked as a trainee lawyer and research assistant in the labor law department of a global law firm in Cologne. Between 2016 and 2018 Lukas was a research assistant to Prof. Dr. Dr. h.c. Preis at the Institute for German and European Labor and Social Law at the University of Cologne.

+49 211-30211-235
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