The introduction of the eAU is based on the Third Bureaucracy Relief Act, which was promulgated in the Federal Law Gazette on November 28, 2019. The law takes advantage of the opportunities offered by digitization to ease the tedious paperwork burden, it says. After the "opportunities of digitalization" were not even begun to be seized in the course of the adaptation of the Verification Act, the Bureaucracy Relief Act also seems much more likely to lead to a bureaucratic burden for employers. An overview.
What is the status quo?
Currently, employees are required to notify the employer immediately of their incapacity for work and its expected duration in the event of illness. If the incapacity for work lasts longer than three calendar days, employees must submit a paper medical certificate (due to its yellow layout called “the yellow slip”) stating the existence of the incapacity for work and its expected duration no later than on the following working day. The employer is also entitled to require the submission of the medical certificate at an earlier date. If the incapacity for work lasts longer than stated in the certificate, employees are obliged to submit a new medical certificate in paper form.
What remains the same?
Following the introduction of the eAU, employees remain obliged to,
immediately notify the employer of their incapacity for work and its expected duration,
to have this confirmed by a doctor at the above-mentioned times, and
to obtain a paper medical certificate from the doctor.
What changes for employees?
From January 01, 2023, employees with statutory health insurance are no longer required to submit a paper certificate of incapacity for work to the employer. They will only have to establish the existence and expected duration of the incapacity to work with a doctor and have a medical certificate handed over for evidentiary purposes, e.g. in the event of a failed electronic transmission.
Note: This does not apply to incapacity for work abroad or to privately insured employees and marginally employed persons in private households. These are still required to submit a paper certificate of incapacity for work to the employer.
What changes for employers?
After the employee has notified the employer of the inability to work, the employer must take action itself and first check the following:
Does the employee have statutory or private health insurance?
Is the employee currently staying in Germany or abroad as part of mobile work or a business trip?
If the check concludes that the employee has statutory health insurance and is currently working in Germany, the employer is then obliged to electronically retrieve the certificate of incapacity for work from the employee's health insurance fund. Upon receipt of the incapacity for work data, the health insurance company has prepared a notification for the employer, which receives the following data:
Name of the employee
Beginning and end of incapacity for work
Date of the medical determination of the incapacity for work
Initial or follow-up certificate
Indications of an accident at work
Note: On the other hand, it is not transmitted which physician with which specialty issued the certificate of incapacity for work. In the past, this information could be particularly useful if there were doubts about the probative value of the certificate of incapacity for work.
The employer may only retrieve the eAU from the health insurance fund if the employer is authorized to receive the data. In order to be authorized, an employment relationship must exist for the requested period and the employee must have notified the employer in advance of the incapacity for work to be retrieved. The employer may therefore not attempt to retrieve an eAU if there is a suspicion of incapacity for work, provided the employee is absent from work without excuse.
Note: Under the current legal situation, employers are entitled to refuse continued payment of remuneration if employees do not present a medical certificate. After the introduction of the eAU, however, this will only apply to employees with private health insurance, as the obligation to present a medical certificate will no longer apply to employees with statutory health insurance. There are currently no plans to amend the wording of the law accordingly with regard to the eAU procedure. It remains to be seen whether future case law of the labor courts will grant employers a corresponding right to refuse benefits if employees with statutory health insurance do not fulfill their obligation to have their incapacity for work determined by a doctor.
Co-determination rights of the works council?
In principle, the works council only has co-determination rights if there is no statutory or collectively bargained regulation. As the notification, verification and determination obligations in the context of the eAU procedure will already be regulated by law in the new version of Section 5 Continued Remuneration Act (EFZG), the works council will have no co-determination rights insofar as it is merely a matter of implementing the statutory requirements.
However, something different may apply in particular if further rules of conduct for employees are to be adopted over and above the statutory requirements or if a technical device is introduced that entitles the works council to monitor the data protection requirements.
What should the employer do already now?
The employer should already check now whether individual contractual or collective-law regulations need to be adapted. Since the introduction of the eAU is mandatory, this regulation may not be deviated from to the disadvantage of the employee. Thus, it may not be agreed, either contractually or under collective law, that even after the introduction of the eAU all employees are still required to submit the certificate of incapacity for work in paper form. It is therefore advisable to provide employees with an information letter regarding the changed obligations in the event of incapacity to work due to illness and to adjust the provisions in the standard employment contracts accordingly with regard to future employment relationships. If collective bargaining regulations exist, these should also be adapted accordingly in order to avoid uncertainties about the effectiveness of the regulations.
“Bye bye yellow slip”: While employees with statutory health insurance will no longer be required to submit a paper certificate of incapacity for work, this obligation will remain in place for employees with private health insurance. In the future, employers will have to carefully check which employees have statutory or private health insurance and which are working in Germany or abroad.