The electronic disability certificate - impact on personnel practice by introducing employers' procedures
According to the current status, the electronic disability certificate ("EAU") is now fully introduced on January 1, 2023. Employers* or HR managers have to prepare for the legal changes, since they will lead to a changed handling of the incapacity certificate ("AU"). In addition, the existing contractual and collective law regulations must be checked and, if necessary, adapted to the new legal requirements.
Current handling
At the moment, employees are also obliged to inform their employer an incapacity to work and their expected duration immediately. If the incapacity to work lasts longer than three calendar days, employees have to present a medical certificate of the incapacity to work and their expected duration - at the latest on the following working day. With the medical AU, the incapacity to work towards the employer is to be demonstrated. So far, the AU has been issued in paper form by the doctor and handed over to the employee. This in turn presents the certificate as proof of incapacity to work - insofar as his doctor's office does not yet participate in the electronic transmission.
With the introduction of the next digitization level (employers' procedure), this process will change.
Introduction of the EAU
As early as 2019, the Bundestag decided to introduce an EAU in the third bureaucracy relief law. In a first step, electronic data transmission was only made between the doctors participating in the contract medical care and the health insurance companies (first stage or employee procedure).
In a further step, the paperless form of the EAU should also be implemented for the employment contract side between employee and employer from January 1, 2023.
For this purpose, the doctors and institutions participating in the contract medical care are kept in accordance with Section 295 (1) sentence 1 no. 1 SGB V to transmit the work invisibility data of an employee you have determined to the responsible statutory health insurance. In a second step, the responsible health insurance company then creates a report for the employer in accordance with Section 109 (1) SGB V (in the version applicable from 1 January 2023) after receipt of these incapacity data. The message has
- the name of the employee,
- the beginning and
- The end of incapacity to work,
- the date of the medical determination of incapacity to work and
- the labeling as a first or subsequent report
to be included.
The same principles apply to incapacity to work within the framework of an inpatient hospital stay (Section 109 (3) Lit. a SGB IV) as well as in the context of work accidents and occupational diseases (Section 109 (3) lit. b SGB IV).
In order to implement these principles, the GKV leadership association has created the so-called "Principles for the Message of Insecency Times As part of the data exchange" (available at https://www.gkv-datenausch.de ). Section 2.1 of these principles stipulates that the EAU may only be accessed by the employer if the employer is entitled to receive the data. There is justification if
- for the requested periods, an employment relationship of the employee in the requesting employer and
- the employee told the employer the incapacity to work and its expected duration in advance.
In this way, the employee's obligation to report is even more important than before.
Notice
In the future, the information to be sent to the employer will no longer include the information from which doctor the incapacity to work was determined. This leaves open which specialty this doctor belongs to. In addition, the employer can no longer simply check whether or not a continuation disease within the meaning of section 3 (1) sentence 2 EFZG. In order to be able to check this, the employer must now request a comparison from the responsible health insurance company. Only then can he check the duration of the employee's continued payment claims. This is due to the fact that doctors usually always issue an initial certificate when there is a cheese turning point, regardless of whether there is a connection between the diseases.
Evidence versus an obligation to determine
As already shown, the employee currently has an obligation to report. The obligation to provide evidence according to Section 5 (1) sentence 2 EFZG is now being replaced by an obligation to determine from January 1, 2023. For this purpose, Section 5 (1) lit.a sentence 2 EFZG (in the version applicable from January 1, 2023) regulates that the employees are obliged to determine the existence of inability to work and its expected duration and to be given a medical certificate.
As of January 1, 2023, the employee is only obliged to see a doctor who then decides on the existence of the incapacity to work. This obligation to determine - just like the current obligation to prove it - only applies if the incapacity to work lasts longer than three calendar days. However, as has so far, the employer can request the determination of incapacity to work earlier (Section 5 (1) lit. a sentence 2 EFZG N.F. in conjunction with Section 5 (1) sentence 3 EFZG n. F.).
In addition, the employee is obliged to have the attending doctor handed over a proper AU. According to the legal justification, this AU in paper form should only serve in accordance with accidents to be able to prove the existence of incapacity to work as a prerequisite for a claim for continued payment (Section 3 EFZG). Such accidents in particular include the failed transmission in the electronic process.
Personal scope
However, the detachment of the obligation to provide evidence by the new obligation to determine does not apply to all employees, but only to those who a member of the statutory health insurance . It has no meaning for privately insured employees.
Furthermore, these new regulations apply according to § 5 Paragraph 1 a Sentence 3 No. 1 EFZG N. F. not for people who work in private households in a minor employment within the meaning of § 8 a SGB IV.
to Section 5 (1) sentence 3 No. 2 EFZG N.F.
Spatial area of application
The spatial scope of the regulations on the EAU is limited to domestic.
The employee must also present an AU in the event of an incapacity to work abroad, since Section 5 (2) EFZG, which contains details on illness abroad, does not include any special regulations. However, since the foreign doctors do not take part in the German contract medical care, it remains due to the exemption of Section 5 (1) sentence 3 No. 2 EFZG N. F. in the obligation to submit an AU in paper form, provided that the other legal requirements are met.
Unchanged notification obligation of the employee
Even if the obligation to provide evidence is replaced by the obligation to determine, it remains with the existing regulations for the obligation to notify the incapacity to work. There is no change in the new § 5 EFZG compared to the old regulation.
The employee is unchanged to immediately inform the employer the incapacity to work and its expected duration. In addition, this obligation to report is not only when the work is initiated for the first time, but also in the event that the incapacity to work lasts longer than originally determined by the treating doctor. This gives a greater importance: The employer can only call up the incapacity data from the responsible health insurance company if he is even aware of the employee's incapacity to work.
Stumbling
Naturally, this new legal situation is still fighting with unexplained questions. These concern in particular the handling of accidents and the employee's communication obligations.
Only at first glance everything seems clear, such as B. in the event of a failed transmission of the incapacity data in the electronic procedure. According to the justification of the law, the obligation to prove the existence of incapacity to work still applies to the employee. Against this background, its future obligation can also be explained to continue to be handed over to an AU in paper form.
But how can this be reconciled with § 7 EFZG? The employer is still entitled to refuse to keep the wages away as long as an employee does not submit the "medical certificate to be presented". The legislator has failed to change this provision together with Section 5 (1) lit. a EFZG NF and now to focus on the lack of fulfillment of the obligation to determine instead of the lack of submission of the AU instead of the lack of submission of the AU.
So is there an illegal regulatory gap? Can you help yourself with a corresponding application of the regulation? A corresponding application and thus a right to refuse in performance could possibly be assumed if the lack of transmission is due to misconduct by the employee. This could z. B. then be the case if the employee did not even determine the incapacity to work. However, this is a daring construction, especially since the clear wording of the legal regulations is probably in the way. Since the employee regularly does not affect the right to proof on the basis of the mandatory introduction of the EAU on the basis of Section 5 (1) lit. a sentence 1 EFZG n. F. A corresponding application of this provision for the violation of the obligation to determine is not (probably) possible due to the clear wording, especially since it applies to employees who do not fall under the personal scope of Section 5 (1 lit. a sentence 1 EFZG n. F.
Nevertheless, the (expected) case law should be kept in mind on this point.
Notice
It is to be considered whether the employer does not pay the wages for the days on which the employee is missing without the employer is aware of a reason for the time being. If the employee then complies with his obligation to determine and the employer therefore receives the corresponding data from the health insurance company in connection with incapacity to work, he pays the relevant wages.
In the case of employees who are not a member of the statutory health insurance, the legally regulated right to refuse benefits remains, since this group of people-further-also affects the obligation to provide evidence, provided that the 3-day limit of Section 5 (1) sentence 3 EFZG has been exceeded or the employer has effectively requested an earlier submission of the AU. In all other cases, the employer will first have to pay continued payment, even if he is not responsible for the lack of knowledge of the incapacity data himself, but the health insurance or the treating doctor.
If the employers now come up with the idea of contractually obliged their employees to submit the AU in paper form, this would not be legally permissible. According to § 12 EFZG, noise can be deviated from § 5 EFZG at the expense of an employee. Such a disadvantageous deviation would be the obligation of the employee, contrary to the new legal regulation of Section 5 (1) lit. a EFZG, to further prove the incapacity to work by AU. For the same reasons, it should not be possible to effectively include such a regulation in a company agreement or a collective agreement. Corresponding regulations would be ineffective due to a violation of § 12 EFZG according to § 134 BGB.
Ultimately, it must be seen whether the courts will accept a communication obligation of the employees with regard to the identity of the doctor who stated in incapacity to work. Unlike before, employers will no longer be informed of this in the electronic report by the health insurance companies. A corresponding obligation to notify seems appropriate, since otherwise employers would hardly have the opportunity to shake the high evidence of an AU. This applies, for example, the cases in which a doctor has become noticeable due to the frequency of the AU he issued.
Co -determination rights of the works council
In principle, the works council has no right to co-determine with regard to the fulfillment of the notification, verification and determination obligations of the employees in the event of incapacity to work. A mandatory right of co -determination according to § 87 Paragraph 1 No. 1 BetrVG regarding the questions of the order of the company and the behavior of employees in the company is ruled out if there is a legal regulation. Such legal provisions exist for the obligation to report according to Section 5 (1) sentence 1 EFZG and for the employee's proof or determination obligation in accordance with Section 5 (1) sentence 2 EFZG or Section 5 (1 lit. a Sentence 1 EFZG n. F.
an important exception results from Section 5 (1) sentence 3 EFZG in the event of a further existing obligation to provide evidence and in accordance with Section 5 (1) lit.a sentence 2 EFZG N
Accordingly, the employer is entitled to request the submission of the medical certificate or the determination of the incapacity to work earlier than is intended in Section 5 (1) sentence 2 EFZG. If the employer is generally used by this option, the right of co -determination of the works council in accordance with Section 87 (1) No. 1 BetrVG must be observed. In exceptional cases, this does not apply if it is not a collective fact. This is particularly the case if the employer only requires this in a specific case.
Notice
In the relevant company agreements, a distinction should be made between the obligation to determine and the obligation to provide evidence with regard to personal areas of application.
Recommendations for action
As an employer or HR manager, you should now prepare for the introduction of the EAU and inform your employees about the new regulations. You should also adapt your sample work contracts to the new regulations so that you are prepared for new settings. In this context, it should be noted that the law differentiates between privately and statutory health insurance employees in the future and that the insurance status can change during the employment relationship. The legal exceptions, in particular for cases of determining incapacity to work by a non -contract doctor, must also be taken into account. A mere reference to the EFZG could violate the EU directive on transparent and foreseeable working conditions.
To avoid misunderstandings, we would like to point out that adaptation of the existing contracts with statutory health insured employees is generally not absolutely necessary. Clauses that map the old legal situation become “only” void at the turn of the year. The new legal regulations, as already included in Section 5 (1) lit. a EFZG NF, then take the place of such clauses.
However, you must note that the legal regulations only oblige employees to have incapacity to work for the fourth day. Insofar as you would like to call up the proof of incapacity to work earlier at the health insurance company, a corresponding individual contractual regulation must be made. In companies with a works council, such a general obligation to determine the employee must be observed his right to co -determination in accordance with Section 87 (1) No. 1 BetrVG.
Ultimately, the technical implementation, in particular the creation of the required IT interface with the health insurance companies, should now be initiated. In this respect, too, you should at least think about a right of co -determination by the works council. In addition, the personnel -related processes must be adjusted. Although a new postponement of the introduction of the EAU cannot be completely excluded, they remember that they are not lifted. Talk to us, we support you!
*For reasons of better readability, the male form is used for personal names and personal words. Corresponding terms generally apply to all genders within the meaning of equal treatment. The shortened language form has only editorial reasons and does not include a rating.