Update Employment Law January 2023

The electronic certificate of incapacity for work (eAUB)

In the event of incapacity for work, the employee may not simply stay away from work. Rather, he or she is obligated to notify the employer immediately of the inability to work and its expected duration and, if this is due to illness or accident and lasts longer than three calendar days, to provide proof in accordance with Section 5 (1) EFZG by submitting a medical certificate (so-called obligation to report and provide proof).

Violations of the obligation to report and provide proof are by no means trivial and can jeopardize the existence of the employment relationship as an unexcused absence - at least in the case of a prior, unsuccessful warning. In addition, according to Section 7 EFZG, the employer has the right to refuse continued payment of remuneration if the employee fails to provide the required proof.

However, as of January 1, 2023, employees who are members of the statutory health insurance system are no longer required to submit the medical certificate of incapacity for work to the employer in paper form.

Instead, the physician issuing the medical certificate must inform the respective health insurance fund, which will then prepare a notification for retrieval by the employer pursuant to Section 109 I of the German Social Code, Book V after receiving the respective incapacity for work data.

The employee is therefore only obliged to visit a physician, who then determines the existence of incapacity for work. This obligation to make such determination - like the previous obligation to provide evidence - only applies if the incapacity to work lasts longer than three calendar days. However, the employer also has the right under the new version to demand that the incapacity for work be determined earlier. The obligation to provide evidence is thus transformed into an obligation to make a determination. If there are disruptions in the transmission or retrieval of the certificate for which the employee is not responsible, this is not at the employee's expense, insofar as the employee has fulfilled his or her obligation to report and ascertain. The effort on the part of the employee and the potential for breaches of duty with regard to the certification of incapacity for work are thus considerably reduced.

The situation is different with regard to the reporting obligation, which is becoming even more important under the new legal situation. This is because the employer may only retrieve the electronic notification of incapacity for work from the health insurance fund if it is authorized to receive the data. Authorization exists if the employee was employed by the requesting employer for the requested periods and the employee informed the employer in advance of the incapacity for work to be retrieved and its expected duration. If, for example, the employee does not inform the employer that the inability to work is due to illness or if he or she fails to state the established duration, the employer is prevented from retrieving the certificate from the health insurance fund.

To retrieve the eAUB, a uniform communication server of the statutory health insurance has been set up, for which the employer must register. To do this, he can either use his own program approved by the system or register with sv.net, which is provided by the Information Technology Service Center of the Statutory Health Insurance (ITSG) (see: https://www.itsg.de/eau-wird-verpflichtend-ab-dem-01-01-2023/). Additional helpful information can be found on the Statutory Health Insurance website for data submission (https://gkv-datenaustausch.de/arbeitgeber/eau/eau.jsp).

Employees who are members of a private health insurance fund and persons who have marginal employment in private households do not benefit from the eAUB (§ 8a of the SGB IV). In addition, eAUB is not eligible in cases where incapacity for work has been determines by a physician who does not participate in SHI-accredited medical care. These employees must continue to submit the certificate of incapacity for work in paper form.

This means that in the future, employers will not only have to ensure that the responsible departments of the company independently retrieve the eAUB, but will also have to continue to request paper certificates of incapacity for work from those for whom the eAUB is not available. This two-pronged approach is likely to result in an increased administrative burden that should have been reduced by the very introduction of eAUB. There is also a need to adapt the clauses in the employment contract in such a way that both groups of employees are taken into account.

An uniform solution for all employees would have been desirable.

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