Cologne, 13.12.2022
In the event that an employee is unable to work due to ill health, they are legally and usually contractually obliged to immediately report their inability to work and the expected duration of absence to the employer. If the duration of absence is three days or more, the employee is also required to submit a doctor’s note as documentary proof (section 5 (1) German Continued Payment of Wages and Salaries Act (EFZG)) If the employee fails to meet the obligation to provide documentary proof, the employer is entitled to refuse continued payment of remuneration (section 7 (1) EFZG).
Until now, it was common practice for the employee to submit the doctor’s note (DN) in paper form, also known as the ‘yellow note’. This process will now be mandatorily replaced by the electronic doctor’s note (eDN). A closer look at the upcoming changes may be useful in view of the regular incidents of health-related absences from work and the imminent changeover.
Basis of the Third Bureaucracy Reduction Act (BEG III)
At the end of 2019, the German legislature had taken the decision to introduce the electronic doctor’s note (eDN) as part of the Third Bureaucracy Reduction Act (BEG III). According to the explanatory memorandum, the objective of this decision is to ease the burden on the economy in general and also reduce administrative and bureaucratic expenditure for employees and employers through the digitalisation of the notification process. Furthermore, the digitalisation and integration of statutory health insurance companies should also help to avoid any current disputes regarding the timely submission of doctor’s notes.
The pilot phase of eDNs was launched on 1 January 2022. Since then, employers have the option of digitally accessing eDNs from the health insurance company, so long as it is technically feasible for them to do so. The mandatory introduction of the eDN was initially planned for 1 July 2022. However, it was delayed, as many doctor’s surgeries were technically not quite equipped to handle the data transfer and processing required in the eDN process.
The pilot phase is now nearing its end. From 1 January 2023, employers will be legally obliged to access eDNs electronically from health insurance companies.
Amendments to the Continued Payment of Wages and Salaries Act and the German Social Code, Volume IV
The introduction of the eDN will be effected through amendments to the Continued Payment of Wages and Salaries Act (EFZG) and the German Social Code (SGB), Volume IV. As per section 109 SGB IV (amended version), statutory health insurance companies will be obliged to create a notification specifying the details of an employee’s inability to work and make it available for access by the employer. Such notification will include the same information as the doctor’s note in paper form (start and end date of the inability to work, date of the medical diagnosis, etc.). Health insurance companies already receive the essential details of an employee’s inability to work from the respective doctors and other healthcare institutions under the existing data transfer obligation stipulated in section 295 (1) SGB V. The new section 5 (1a) EFZG will ultimately bring the eDN process under employment law and shift the employee’s burden of submitting documentary proof of their inability to work.
Scope of application – to whom does the eDN process apply?
The eDN process and the relief from providing proof of inability to work come with their own set of restrictions and only apply to employees insured under the statutory health insurance scheme. As per further exceptions under the statute, the following are excluded from the eDN process by law (section 5 (1a) EFZG as amended):
- employees with private health insurance
- employees with mini-jobs working in private households
- hours spent on rehabilitation and preventive measures, and
- employees with statutory health insurance, if the inability to work has been established by a doctor not accredited by/affiliated to statutory health insurance schemes (for instance, private doctors or doctors outside Germany).
In these cases, the previous obligation to provide proof under section 5 (1) EFZG will continue to apply. Here, it is the employer who is obliged to take on the bureaucratic expenditure, particularly with respect to payroll accounting.
In future, it would suffice within the scope of the eDN process if an employee sees a doctor, and their inability to work and the expected duration of absence is established. Thus, under section 5 (1a) EFZG (as amended) the employee will only be obliged to establish that they are ill. The employee will also be responsible for obtaining a paper certificate regarding their inability to work, unless there exists an obligation to the contrary.
The legislature has thus partially retained the need for the paper form despite the introduction of the eDN. This is to allow employees to receive legal evidence of high evidentiary value (that is, a doctor’s note in paper form) so that in the event of technical errors or disruptions (for instance, failed transmission in the electronic process) the inability to work may be substantiated procedurally and out of court to fulfil the requirements of continued payment of remuneration. According to the explanatory memorandum, the plan is to eventually provide an electronic equivalent with similarly high evidentiary value and work completely paper-free.
Continuation of the employee's notification obligation
The eDN process only makes redundant the employee’s obligation to provide documentary proof. The employee continues to be obliged to immediately notify the employer about their inability to work and provide the expected duration of their absence from work. The employer first gains knowledge of the employee’s inability to work on the basis of this information and can afterwards request and access the appropriate eDN from the health insurance company.
eDN access process
With the introduction of the eDN process, the onus of obtaining proof of the inability to work now lies with the employer. The following applies with regard to the process of accessing the eDN and the persons and institutions involved.
If the employee sees a doctor and their inability to work is established, or if the employee is hospitalised, the doctors and the hospitals are obliged to send the eDN to the health insurance company without delay, no later than by the end of the day (section 295 (1) SGB V). At the same time, the details of the eDN should be handed over to the employee in hardcopy (section 109 (1) sentence 5 SGB IV (as amended)).
Upon receipt of the eDN, the health insurance company is obliged to generate a notification based on the details in the doctor’s note which may be accessed by the employer (section109 (1) SGB IV (as amended)). Like the erstwhile ‘yellow note’, this notification will contain all the details required by the employer to fulfil their obligations under employment law, including that of continuing to pay remuneration.
Finally, the employer is required to request the generated eDN via the statutory health insurance communication server (GKV-KommServer). The health insurance company will then provide the eDN to the employer so the employer can then access and process it.
Responsibility in the event of (technical) errors
In such a large-scale changeover to a digital workflow, technical problems while preparing and accessing the eDN are expected, especially during the initial stages. Errors (such as, delayed communication, incorrect or missing data) may even occur at the interfaces between doctors and health insurance companies or employers and health insurance companies when the information regarding the inability to work is created and sent.
The Act does not regulate how to handle such cases. The explanatory memorandum suggests that in these cases the employee may use the doctor’s note provided to them as documentary proof of their inability to work. However, this does not imply a revival of the employee’s obligation to provide documentary proof.
Although in the event of technical errors or disruptions it may not be possible for employers to view the details necessary for processing the continued payment of remuneration (for instance, details regarding the expected duration of absence from work or even the notification of inability to work), they will not be entitled to refuse to continue to pay remuneration on the grounds of a breach of obligation by the employee rendered incapable of working. Employees are, however, advised to submit the written sick note issued by the doctor as documentary proof in such cases in order to ensure the remuneration is processed smoothly. The reason being that a doctor’s note, in principle, forms the basis of the employee's burden of producing evidence and the burden of proof of their inability to work in fulfilling the requirements for continued payment of remuneration.
Contractual provisions regarding the obligation to provide proof and establish the inability to work
The implementation of the eDN process and the changing of the employee’s obligations from providing proof to that of establishing the inability to work have put the conventional contractual clauses in employment contracts to the test. With the coming into force of the new amended version of section 5 (1a) EFZG, the contractually defined obligation to provide proof can now only be applied outside the scope of the eDN process.
In future, only the obligation to establish the inability to work may be contractually agreed upon wherever the eDN process is applicable. The EFZG will also make provisions within the framework of the eDN process to allow the employer to ask the employee to establish their inability to work from the first day of their absence from work (section 5 (1a) sentence 2 EFZG (as amended)).
Comments
Employers need to make technological preparations for the introduction of the eDN process and test the eDN access procedure in advance in order to guarantee smooth and conflict-free handling of the continued remuneration process when section 5 (1a) EFZG (as amended) comes into effect.
In addition, employers should examine early on the need to adjust or modify their existing employment contract templates. The previously used contractual clauses do not take into consideration the distinction between employees insured under statutory and private health insurance, nor do they include the employee’s obligation to establish their inability to work. Therefore, when concluding new employment contracts employers will have to ensure that such clauses are adapted to the new legal framework. Already existing provisions should also be modified if need be and if the employee is in agreement with this.
