Employment Law 4.0 – Obligation To Present Certificate Of Incapacity For Work No Longer Required


On June 6, 2019 ( to the Article), we reported on the certificate of incapacity for work via WhatsApp. We pointed out an option offered to employees by an amendment of the Professional Code of Conduct for Physicians and the lifting of the ban on remote treatment while warning against misuse of the certificate of incapacity for work via WhatsApp. The legislator has now taken direct action in the Bureaucracy Relief Act III to digitize the certificate of incapacity for work or its processing. Regrettably, there are still open questions arising from the law, which was passed by the Federal Council on November 08, 2019.

Accordingly, employers may no longer wait until employees present the analog certificate of incapacity for work. Instead, in accordance with Section 109 Social Code SGB IV, employers should be able to use a portal of the health insurance funds to obtain digital information about the employees' incapacity for work, which employees must continue to notify in person. Employers may therefore access substantial information of the incapacity for work online (employee name, duration, date of determination). Physicians must provide the relevant data to the health insurance funds.

Section 5 Continuation of Remuneration Act consequently introduces a new paragraph 1a. From January 1, 2022 on, employees who are members of a statutory health insurance fund will no longer have to submit a certificate of incapacity for work to their employers, if this is necessary at all because the incapacity for work lasts longer than three calendar days (Section 5(1) sentence 2 Continuation of Remuneration Act). It will be sufficient for employees to have a certificate of incapacity for work issued by a physician stating the existence of the incapacity for work and its likely duration. Disputes and warnings relating to the issue of whether and by what means employees correctly submitted the certificate of incapacity for work will then be irrelevant. Upon receipt of the notification from the physician, the health insurance fund must draft a notification for employers to retrieve containing information on the name of the employee, the beginning and end of the incapacity for work, the date of issue, and whether it is an initial or follow-up notification.

It is regrettable, though, that the intended new regulation poses another set of problems:

For one, there is an obvious legal error in setting up the procedure. Section 7(1)(1) Continuation of Remuneration Act...

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