The new system shifts the burden of responsibility on medical certificates from staff to employers
Since 1 January 2023, the obligation of the employee to submit a paper-based certificate of incapacity for work to the employer was replaced by an electronic request procedure provided that the employee is covered by statutory health insurance. It is now the employer's responsibility to request the electronic certificate of incapacity for work. According to the legislator, the manual administrative effort associated with a paper form of the certificate of incapacity for work is no longer in keeping with the times given advancing digitalisation.
Previous legal situation
The previous legal situation is determined by sec. 5 of the German Continued Remuneration Act (Entgeltfortzahlungsgesetz - "EFZG"). Employees must immediately notify their employer of an incapacity to work, stating the expected duration (so-called obligation to notify). Employees are also obliged to submit a certificate of incapacity for work to the employer in paper form no later than on the fourth day of the illness if the incapacity for work lasts longer than three calendar days (so-called obligation to provide evidence). The employer is entitled to demand the submission of the certificate of incapacity for work even earlier. If the incapacity to work lasts longer than stated in the certificate, the employee must submit a new medical certificate.
Legal situation since 1 January 2023
From 1 January 2023, employees are no longer obliged to provide evidence of their incapacity to work, while their obligation to notify the employer remains. Employers are required to electronically request data on incapacity for work from the statutory health insurances in accordance with the newly introduced paragraph 1a of sec. 5 EFZG.
In order to make this possible, the already existing sec. 295 para. 1 s. 10 of Social Code V (SGB V) stipulates that the attending doctor transmits the incapacity for work data determined by him directly to the health insurance fund electronically. The employee then only presents himself to a doctor at the times specified in sec. 5 para 1 s. 2 and 4 EFZG and have the attending doctor establish the existence of an incapacity to work and its probable duration. The employee then receives a written certificate of incapacity for work from the doctor, which contains the data intended for the employer. However, this paper certificate is no longer to be handed over to the employer, but only serves as evidence for the employee in case of electronic malfunctions during transmission. To make the information from the certificate of incapacity for work also accessible to the employer, sec. 109 para. 1 s. 1 of Social Code IV (SGB IV) has been amended as well. Upon receipt of the incapacity for work data, the statutory health insurances must prepare an electronical certificate for the employer to request, which contains the main incapacity work data.
However, the new regulation on the electronic request procedure only applies,
- if an employee is covered by statutory health insurance (in distinction to employees who have a private health insurance),
- is not a marginally employed person working in private households,
- and the incapacity for work is determined by a doctor participating in the statutory medical care.
Otherwise, the previous legal situation continues to apply, namely the employee's obligation to submit a paper-based proof of incapacity for work to the employer.
Adaptation of employment contracts
An employment contract clause obliging employees now affected by the new regulation to submit a paper certificate of incapacity for work to the employer is no longer in conformity with the law and must be interpreted in accordance with the new regulations. Employment contracts should be adapted with the next contract amendment and employment contract templates should be amended. If you have any questions and for more information, get in touch with our German EPI Team.