Electronic certificate of incapacity for work (“eAU”) for employers is coming

As of January 1, 2023 at the latest, health insurance companies must provide employers with the work incapacity data in digital form. This will not only eliminate the bureaucratic effort for employees, employers and statutory health insurance companies related with the analog certificate. It will now also be easier to meet the employers’ and health insurance funds’ filing and reporting deadlines – if employees comply with their notification duties.

Expansion of electronic transfer for less bureaucracy

Thus, the physicians’ obligation to transfer certificates of an incapacity for work electronically to the statutory health insurance funds, which has already been in effect since July 1, 2022, will now be extended to the copy to be provided to the employer.

Now as before, employees are obliged to immediately inform their employer about any incapacity for work and its expected duration. The illness must be certified by a physician within the statutory period or the period specified by the employer for the submission of a medical certificate.

Two-step data transfer

The incapacity for work data is transferred in two steps:

1. The physician transfers the employee’s incapacity for work data electronically to the competent statutory health insurance fund.
2. Data transfer from the statutory health insurance fund to the employer.

The employer must actively request the incapacity for work data from the employee’s statutory health insurance fund. Such request should be made no earlier than on the day the certificate of incapacity for work must be submitted by the employee due to the statutory period or the employer’s requirements. The health insurance fund should respond to the request on the next working day at the latest. If, at the time of the processing by the health insurance fund, no certificate of incapacity for work should be available, the health insurance fund will report such fact to the employer and will check during the next 14 days whether or not any certificate of incapacity for work will be filed. If a certificate of incapacity for work will be filed, it will be automatically provided to the employer with the confirmation log in the employer’s payroll program. Otherwise, the employer can start a new request 14 days after the first request.

The incapacity for work data of persons in marginal employment are also available at the health insurance fund

The process for persons in marginal employment does not differ from the ordinary eAU process. The relevant data are not requested from the mini-job center but from the employee’s statutory health insurance fund. Therefore, in case of marginally employed persons, the employer must request the name of the statutory health insurance in future.

For the performance of the U1 refund procedure, the mini-job center can request the incapacity for work data from the health insurance funds.

Electronic procedure does not apply to all sick notes

The following persons are excluded from the electronic reporting procedure:

• privately insured employees,
• mini jobbers in private households,
• sick notes in case of the child’s illness,
• Physicians, dentists and hospitals which are not registered with the statutory health insurance

In these cases, the previous process will continue to apply.

Ramifications under labor law

The eAU is introduced due to social insurance regulations. In practice, however, one must not disregard the fact that this will also have implications under labor law due to the introduction of the new Art. 5 (1a) EFZG (German Continued Remuneration Act).

According to the currently applicable legal situation, every employee must submit a medical certificate confirming the incapacity for work’s existence and its expected duration no later than on the fourth day of sickness (Art. 5 (1) sentence 2 EFZG). Such obligation to submit a certificate also applies if the incapacity for work continues. From January 1, 2023, this obligation to submit a certificate will be replaced by the obligation to have the incapacity for work determined by a physician.

In such case, employers cannot bindingly agree with employees that these have to submit a certificate of incapacity for work even after the eAU’s introduction. Such obligation would constitute a detrimental deviation from the EFZG. For the same reasons, it is not possible to bindingly include such regulation in a works agreement either. Corresponding regulations would be ineffective and should therefore be reviewed in any employment contracts, works agreements, etc.

No legally certain situation

Due to the legal change, we believe that the previous regulations, which still require a submittance of the certificate, are to be interpreted as no longer requiring the submission but, instead of that, an obligation to determine the incapacity for work. However, only a decision of the Supreme Court will provide legal certainty.

From January 1, 2023 at the latest, we recommend no longer agreeing upon an obligation to submit the corresponding certificate in new employment contracts or works agreements in order to avoid disadvantages.

Differentiation between the duty to determine and the duty to inform about the incapacity for work

The disabled employee’s duty to inform must be distinguished from the duty to determine the incapacity for work. For example, an employee is obligated (Art. 5 (1) sentence 1 EFZG) to immediately inform the employer about his incapacity for work and its expected duration. With regard to this information duty, the eAU’s introduction will not result in any changes.

However, in our opinion, the duty to inform will gain importance. The employer can address the employee’s health insurance fund in order to request the eAU’s available data only if he is notified by the employee about his incapacity for work and its expected duration.

Practice will show which labor law-related consequences will arise from the electronic certificate of incapacity for work’s introduction, in particular with regard to issues related to warning letters and notices of termination.