The Electronic Certificate of Incapacity for Work – What Employers in Germany now have to Consider

On January 1, 2023, the electronic certificate of incapacity for work (eAU) became mandatory for employees with statutory health insurance. Previously, employees were obliged to show their employer the typical yellow certificate of incapacity of work. With the new regulation coming into force, employers are now obliged to retrieve the eAU digitally from the health insurance.

The mandatory introduction for employers was originally planned for July 1, 2022. However, after delays in the upstream phase, in which doctor’s offices and health insurance companies were to adapt their systems to the new regulation, the pilot phase for employers was extended until December 31, 2022. During this time, the new system was to be tested to ensure a smooth transition to the new system. While doctor’s offices have now largely adapted to the eAU, it remains to be feared that many employers are nevertheless still technically and organizationally unable to access the eAU digitally.

I. How does the new procedure work?

1. Notification from employee to employer: Employees remain obliged to notify the employer immediately of their incapacity for work and its expected duration (obligation to notify under Section 5 para 1 of the Continued Remuneration Act  (EFZG)). Whereas employees were previously obliged to submit the certificate of incapacity for work in paper form to the employer (obligation to prove the incapacity for work), employees are now only obliged to determine their incapacity for work and its probable duration and to have a medical certificate issued (obligation to determine under Section 5 para 1a EFZG).
2. Data transmission from doctor to health insurance: If the doctor diagnoses the employee’s incapacity for work, the doctor transmits the necessary data electronically to the employee’s health insurance by midnight at the latest.
3. Employer’s request to the health insurance: The employer contacts the respective health insurance and makes a request for the eAU via its communication server.
4. Provision of the eAU by the health insurance: As soon as the health insurance provides the eAU on its communication server, the employer receives a notification and can retrieve the eAU. Provision should normally be possible one day after the doctor’s visit.

II. What obligations and rights do employers have with regard to the eAU?

In principle, employers have been obliged to retrieve the eAU digitally since January 1, 2023.

Employers are only entitled to retrieve the eAU if the employee has previously reported sick and is still employed by the employer. A general query of the eAUs of all employees is therefore not permitted.

In the case of ongoing illness, the follow-up certificate constitutes a new process. Employers must therefore retrieve the eAU for the follow-up certificate again.

III. At what point does it make sense to retrieve the eAU?

It makes sense for employers to request the eAU from the health insurance at the earliest one day after the employee’s visit to the doctor, as the doctor cannot be expected to transmit it to the health insurance before then.

IV. In which cases does the new regulation not apply?

Private patients and those entitled to benefits from the state (Beihilfeberechtigte) are not covered by the eAU and thus continue to receive the classic yellow certificate of incapacity of work in paper form, which they must present to their employer.

The new regulation also does not apply to illnesses abroad, to the determination of incapacity for work by doctors who are not insurance-accredited and to employers of mini-jobbers in private households.

In these cases, the retrieval of an eAU by the employer is thus not possible.

V. What information does the eAU contain?

The eAU contains the name of the employee, the start and end of the sick leave, the date on which the sick leave was diagnosed and information on whether it is an initial or follow-up certificate and whether it is an work accident. The eAU contains neither information about the diagnosis nor about the diagnosing doctor. The latter is disadvantageous for the employer for several reasons. Firstly, this makes it more difficult for the employer to check whether there is a continuation of illness within the meaning of Section 3 para 1 clause 2 of the EFZG. Secondly, circumstantial evidence, such as a diagnosis of mental illness by a general practitioner, which suggests that the employer is only feigning incapacity for work, is no longer known to the employer. Previously, the employer could also request a statement from the medical service to verify the employee’s incapacity for work if the doctor certifying the incapacity for work had become conspicuous because of the frequency of issuing incapacity for work certificates and there were therefore doubts about the incapacity for work. The control in the case of conspicuousness is now the responsibility of the health insurances.

VI. What is the typical procedure in the case of technical malfunctions?

In the case of technical malfunctions, the employee can still request the classic printout from the doctor and present it to the employer and submit it to the health insurance. If the doctor’s office only detects the malfunction after the patient’s visit, it sends a printout of the eAU by post to the health insurance, which then digitizes the data by printing a barcode. Employers can then retrieve the eAU about two days later than they normally would. Even in the case of technical malfunctions, employers may not require their employees to produce the medical certificate, as it contains the diagnosis.

VII. When can the employer refuse continued payment of remuneration?

If the employer wishes to refuse continued payment of remuneration in the event of illness, it must demonstrate and prove that the conditions for the right to refuse payment under Section 7 para 1 EFZG exist. This means that the employer must show that the employee has not fulfilled his/her obligations under Section 5 para 1 and 2 EFZG.

• Privately insured employees: For privately insured employees, this means that employers must prove that employees have not fulfilled their obligation to prove the incapacity for work, has been the case up to now. If employers do not receive certificate of incapacity of work in paper form, they can thus refuse continued payment of remuneration.
• Statutorily insured employees: Under the new regulation, employees with statutory health insurance are no longer required to prove the incapacity for work, but only to determine their incapacity for work to Section 5 para 1a of the EFZG. The legislator has not explicitly extended the scope of application of Section 7 para 1 EFZG to Section 5 para 1a EFZG. However, it is sometimes argued that employers may nevertheless refuse continued payment of remuneration even if statutorily insured employees do not comply with their obligation to determine their incapacity for work under Section 5 para 1a EFZG. This is to be rejected due to the explicit wording. It is to be hoped that the legislator will create legal certainty through a clear regulation.
• If employers do not receive eAU, they are still obliged to continue to pay remuneration. This also applies if they do not receive the eAU because of a malfunction that lies outside the sphere of the employer. The new regulation is therefore disadvantageous for the employer, as it bears the entire risk for malfunctions in the notification process.

• Denial of incapacity for work: If the employer does not deny the fulfillment of the duty to determine their incapacity for work by a doctor but the existence of incapacity for work itself, a cessation of continued payment of remuneration comes into consideration. The transmission of the eAU by the health insurance has the same evidential value as the certificate of incapacity for work in paper form. In the case of technical malfunctions, the employee can use the paper certificate issued to him/her to prove the incapacity for work outside of court and in court proceedings. The employer must contest the evidential value of the eAU or the certificate by presenting factual circumstances that cast doubt on the illness. Such circumstances exist, for example, if the employee announces his/her inability to work for a period for which the employer has refused to grant leave.

VIII. What are the advantages of the new regulation for employers?

Employers must now contact the health insurances themselves to obtain the certificate of incapacity for work. This means that they have an additional obligation, but they are now in control and do not depend on the reliability of their employees.

IX. What should employers do now to make the transition smooth?

• Adapt internal processes: Until now, employee absences were often recorded in the time recording system based on the yellow certificate of incapacity of work in paper form. Companies should now revise their internal processes for recording absenteeism so that the information is correctly recorded and billed even without the yellow certificate of incapacity of work in paper form.
• Adapt existing labor and collective agreements: Insofar as existing contracts provide for an obligation to prove the incapacity for work to the employer for employees with statutory insurance, such a provision is not lawful and is therefore invalid (Section 12 EFZG). The legal regulation takes the place of the contractually agreed regulation, so that there is not necessarily a need to adapt existing contracts. However, if existing employment contracts are not adapted, it is recommended to inform employees comprehensively about the change in the law and in particular to make clear to whom the changes apply.

If employers have so far made use of the possibility of obliging employees to prove the incapacity for work before the fourth day of incapacity for work and now want to transfer this to the obligation to determine their incapacity for work, an adjustment of the employment contracts is recommended for reasons of legal certainty. Although there are many indications that the provisions can be interpreted in such a way that the date previously applicable to the obligation to prove the incapacity for work applies to the obligation to determine the incapacity of work, the matter has not yet been resolved by the (highest) courts. The works council has a right of co-determination (Section 87 para 1 no. 1 Works Constitution Act (BetrVG)) in the case of such an earlier obligation to determine the incapacity of work.

• Recommendations when concluding new labor and collective agreements: Where the eAU is applicable, in future only an obligation to determine the incapacity of work and no obligation to prove the incapacity for work on the part of the employees can be agreed. However, it is possible to oblige employees to have the incapacity for work determined on the first day of incapacity for work. It is recommended that the clause on incapacity for work explicitly refer to the differences between privately and statutorily insured employees, as well as to the other cases in which the new regulation does not apply.
• Expand recruitment forms for mini-jobbers: Since mini-jobbers are also covered by the regulation, recruitment forms should in future also provide for mini-jobbers to give information on their health insurance. For existing employment contracts on a mini-job basis, employers should obtain the information on health insurances retrospectively.