The certificate of incapacity for work to be provided to the employer only in digital formWhat you need to know about the electronic certificate of incapacity for work

Digitalisation in Germany is advancing and is not stopping in the world of work. Since 1 January 2023, a large proportion of employees no longer have to present the paper certificate of incapacity for work to the employer. Employers can now retrieve the electronic certificate of incapacity for work digitally, so that the presentation of the physical certificate of incapacity for work to the employer is no longer mandatory.

The necessary procedure in the case of incapacity for work was widely known to all parties involved in company practice: The employee immediately, i.e. as a rule not only shortly before starting work, indicates his incapacity for work and, if applicable, its expected duration. Whether or not a medical certificate of incapacity for work (AU for short) has to be presented directly on the first day has been handled differently due to the legal regulation:

If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate and the expected duration of the incapacity for work on the following working day (i.e. on the fourth calendar day) at the latest, according to section 5(1) sentence 2 of the Continued Remuneration Act (Entgeltfortzahlungsgesetz). However, according to section 5, paragraph 1, sentence 3 of the Continued Remuneration Act, the employer is also entitled to demand the submission of the medical certificate earlier and thus already on the first day. If the incapacity for work lasts longer than stated in the certificate, the employee is obliged to submit a new medical certificate.

It is precisely this “obligation to submit” that has been abolished for a large number of employees since 01 January 2023.

Employees who are insured with a statutory health insurance fund are no longer obliged to submit an “AU” to the employer in paper form. They are obliged to ascertain the existence of incapacity for work and its expected duration at the above-mentioned times and to obtain a corresponding medical certificate (for their own proof). This certificate does not have to be presented to the employer. Instead, the employer can retrieve the data on incapacity for work digitally.

However, this relief does not apply to the following persons:

• marginally employed persons working in private households,
• privately insured patients,
• employees with statutory insurance who have their incapacity for work determined by a doctor who does not participate in contractual medical care and is therefore not a “contractual doctor”.

But how do employers obtain the necessary data on incapacity for work? First of all, the doctor is obliged to record the data on incapacity for work that he or she has determined and to transmit it digitally to the health insurance funds. After receiving the incapacity to work data, the health insurance funds are obliged to create a report for the employer to retrieve. This report contains the following data:

• the name of the employee,
• the beginning and end of the incapacity for work,
• the date on which the incapacity for work was established by a doctor,
• the designation as first or subsequent notification, and
• whether there are indications that the incapacity for work is due to an accident at work or other accident or to the consequences of an accident at work or other accident.

The indication of the issuing doctor is no longer provided for. This is definitely a disadvantage for employers, since neither a check of the certificate of incapacity for work nor conclusions about the type of illness are easily possible due to the specialization of the issuing doctor.

The data is therefore not automatically transmitted to the employer, but must be retrieved each time. Employers can request the sick leave data from the health insurance fund and use a system-tested program (e.g. the payroll accounting software) for this purpose. It would be advisable to coordinate this with the tax adviser. In addition, a query of the AU data can be made via ITSG.de (there under sv.net).

It will certainly take some time to get used to the smooth retrieval and handling of the electronic certificate of incapacity for work. It remains to be seen whether this will really bring added value.

Finally, a widespread misconception must be dispelled: The employee may have been released from submitting a certificate of incapacity for work, but the obligation to report incapacity for work without delay is by no means waived by this.

Our Labour Law practice group will be happy to assist you with questions on how to deal with periods of incapacity for work and the associated consequences and options.