Digitisation is also proceeds in labour law. However, it remains to be seen whether the electronic certificate of incapacity for work (eAU) actually goes hand in hand with the desired goal of reducing bureaucracy and thus relieving the burden on employers.
In the meantime, the Federal Council has approved the Third Bureaucracy Reduction Act (“Drittes Bürokratieentlastungsgesetz – BEG III”). In addition to the Appointments Service and Care Act (Terminservice- und Versorgungsgesetz – TSVG), which came into force in May 2019 stipulating that certificates of incapacity for work may only be transmitted digitally to the health insurances by the physicians as of January 1, 2021, the BEG III provides, among other things, for the comprehensive introduction of the eAU. The well-known “yellow certificate” will thus be replaced in future by a digital sick note. However, this only applies to employees with statutory health insurance. In the case of employees with private health insurance, the previous procedure of submitting the “yellow certificate” remains unchanged.
What will change in the future in the procedure for notification of sickness for employees with statutory health insurance?
First of all, it can be stated that the obligation to notify the employer immediately of the incapacity to work and its probable duration in accordance with sec. 5 (1) Continued Remuneration Law (Entgeltfortzahlungsgesetz – EFZG) remains unchanged. If the sickness lasts longer than three calendar days, the employee is also obliged to consult a physician and to obtain a medical certificate stating the existence of the incapacity to work and its probable duration. The amendment takes effect as soon as the employee visits the physician: If the employee agrees to the electronic transmission of his health data to the health insurance and to the employer, his sickness data is then recorded in the practice management system and transferred to the health insurance. The health insurance in turn assigns the employee’s data to the respective employer and makes the data available to the employer for retrieval. However, the employee will continue to receive a copy of the certificate of incapacity for work in paper form as alternative proof of the existence of the incapacity for work out of court as well as in court, particularly in the case of electronic transmission errors.
What information will the employer receive from the eAU in the future?
In addition to the name of the employee, the beginning and end of the incapacity to work, the date of the medical determination of the incapacity to work and the information of a first or subsequent sickness, the eAU also contains information on the creditability of previous sickness and thus on the expiry of the continued payment of remuneration. However, it is no longer statutory to specify the examining physician.
The advantages of the eAU are that the employer is informed more quickly of an employee’s incapacity to work, thus enabling efficient personnel planning.
Nonetheless, there are serious drawbacks, as there are a number of questions to which there are no answers yet. What if employees do not give their consent to the transfer of their data? What happens if the electronic transmission does not work and the eAU does not reach the employer? How can the employer check in future without specifying the issuing physician whether, for example, the same physicians are involved again and again to issue certificates of incapacity for work? Does the employer need any particular software in order to be able to receive the eAU at all?
As of today, it can certainly be said that companies will have to deal with the eAU and should review their guidelines on the procedure for notifying sick leave. By the time the amendments to the law come into force, it is possible that some of the above mentioned issues will have been clarified. We will of course keep you informed about the further development of the eAU.
Anna-Julia Quarg Dr. Lorenz Mitterer
Lawyer Lawyer-Partner
