Work stoppage by phone and video consultation
Due to the decision of the federal joint committee, since August 4, 2022, employees can obtain sick leave for up to seven days by telephone. The regulation applies for a limited period until November 30, 2022 and only in the case of respiratory diseases. But what does a sick notice mean? What procedure should be followed? What else applies to sick leave using video consultation hours?
1. EARLIER EVIDENCE
A duly issued medical certificate of incapacity for work has a high probative value as proof of incapacity for work due to illness. It does not justify a legal presumption so that only evidence to the contrary would be admissible. However, it has the effect of a real presumption as prima facie evidence. Companies must therefore break the prima facie case of the certificate of incapacity for work if they wish to refuse continued payment of wages or if they wish to deny incapacity for work for other reasons. For this purpose, facts must be presented which raise serious doubts as to incapacity for work due to illness (e.g. prior notification of incapacity for work; repeated temporal connection with public holidays and/or holidays ).
Insofar as certificates of incapacity for work – as required by law in Germany – distinguish illness and incapacity for work, certificates of incapacity for work issued abroad also have the same probative value.
2. INCAPACITY DETERMINATION PROCEDURE
In accordance with § 4 of the applicable guideline of the Federal Joint Committee on the assessment of incapacity for work and measures for gradual reinstatement in accordance with § 92 paragraph 1 sentence 2 number 7 SGB V (AU-RL), the determination of the incapacity for work must be based exclusively on a directly personal or indirectly personal medical examination by means of a video consultation. The latter is only allowed if the disease does not rule it out anyway. In the case of video consultations, the duration of the certificate should only exceed three days if the person whose incapacity for work is decided is already known personally by a doctor during previous contacts.
If these requirements are not met, it can be assumed that the certificate of incapacity for work does not meet the requirements of Section 5 EFZG and companies can therefore reject it as insufficient. Therefore, such a certificate cannot be given as prima facie evidence either.
However, an exception to this still applies due to the corona pandemic: according to § 8 Para. 1 S. 2 AU-RL, the determination of incapacity for work in cases of diseases of the upper respiratory tract that do not have severe symptoms can also be made for a period of up to seven calendar days after a telephone anamnesis, namely by means of the personal medical conviction of the person assessed by a detailed telephone interview. The extension of the incapacity for work can also be determined once for a further period of up to seven calendar days by means of a telephone anamnesis.
3. FORMAL REQUIREMENTS FOR DISABILITY CERTIFICATES
Furthermore, it has not been clarified whether the certificate of incapacity for work within the meaning of § 5 EFZG must be drawn up in writing in accordance with § 126 BGB (original signature on paper). However, mainstream opinion assumes so. A scanned signature is therefore generally not sufficient as proof of incapacity for work. Digitally issued certificates of incapacity for work therefore do not meet the legal requirements. The corresponding offers circulating on the Internet cannot, in case of doubt, provide a prima facie proof of incapacity for work, if only for formal reasons.
For purely practical reasons, certificates of incapacity for work are no longer sent in the original by post, but are sent as a scan or photo. This type of resource-efficient approach is also acceptable to businesses and is therefore widely accepted. Of course, companies can insist on presenting the original.
4. FUTURE: DIGITAL DISABILITY CERTIFICATE
At first glance, the legal situation seems to follow the practice, which is already largely in place, as of 2023. Indeed, doctors will remain obliged to issue a certificate of incapacity for work (in paper form) from January 1, 2023. The main difference compared to the current legal situation will only be that companies will be able to request the “data” on incapacity for work digitally directly from the health insurance fund. According to the justification of the law, however, the analogous “yellow AU certificate” (with original signature) remains a precautionary proof for employees.
However, the basic obligation for employees to present a certificate of incapacity for work will no longer apply in the future. It is therefore to be expected that there will be far fewer problems in purely practical management between employees and companies.
It has not yet been definitively clarified whether and in which individual cases – in addition to the disruptions of the digital recovery option – the presentation of the certificate of incapacity for work will still be relevant.