25.10.2020

Beep, beep, beep – At The Sound of the Next Tone: Certificate of Incapacity for Work, Issued by Phone

There it is again, the medical certificate of incapacity to work by telephone (AU). It's been a long-standing tradition when it comes to ordering pizza: Beep Beep "Pizza Avanti Good Evening", "Good Evening, a Pizza Ham Mushrooms, a Pizza Seafood and a Pizza Hawaii for Schmid in Munich", "OK, in 20 minutes", "Perfect, Thanks". This will now again be possible with the AU: Beep Beep "Practice Dr. Mustermann, Good morning, what can I do for you", "Good morning, I am ill and need an appointment", "What hurts? ", "I have a sore throat and problems breathing", "You do not need an appointment, I will connect you with the doctor", "But I would have to work today and need a sick note", "No problem, the doctor can also determine the incapacity to work by telephone", "Great and thank you".

Dear Readers,

Corona makes many things in everyday life impossible or difficult, such as holidays, going to the cinema, family celebrations, concerts etc. Corona also makes many things possible in terms of employment law, such as the "telephone AU", the medical certificate of incapacity to work, issued by telephone, without a physical examination by a physician.

Principle: The duties of the sick employee in the event of incapacity for work

Legally speaking, incapacity for work due to illness is deemed to be given if there is a physical or mental condition that is contrary to the regulations, and as a result the work performed can no longer be carried out or can only be carried out at the risk of aggravating the illness.

The employee's duties in the event of incapacity to work due to illness include the duty to notify, the duty to provide evidence and to further recovery. The duty of notification under section 5 (1) sentence 1 of the German Act on Continued Payment of Remuneration (EFZG) is understood to mean the immediate informal communication by the employee to the employer of the incapacity to work and its probable duration. The notification can be made informally, e.g. by telephone, e-mail or WhatsApp. The duty to provide evidence is understood to mean the submission of a medical certificate of incapacity to work in accordance with section 5 (1) sentence 2 EFZG.

Requirements for an effective certificate of incapacity to work

If the incapacity to work due to illness lasts longer than three calendar days, employees have the legal obligation (section 5 (1) sentence 2 EFZG) to submit a medical certificate of incapacity to work to the employer no later than the following working day. The attestation / medical certificate is to be issued by a licensed physician after a thorough examination in person. The AU must state the name of the employee, the beginning and the probable duration of the incapacity to work due to illness. The certificate of incapacity to work must also state when the physician diagnosed the AU and whether it is an initial or follow-up certificate. If only one of these mandatory details is missing, there is no proper certificate of incapacity to work. The medical diagnosis of the illness is not mentioned on the certificate for the employer for reasons of data protection law.

Exception: Sick leave by telephone possible again

For a limited period of time from 19 October 2020, initially until 31 December 2020, patients suffering from minor respiratory diseases can be granted up to seven calendar days of sick leave by telephone, according to a communication of the Federal Joint Committee (G-BA). Physicians in private practice must personally ascertain the patient's condition by means of a detailed telephone examination. A one-time extension of the sick leave can be issued by telephone for a further seven calendar days.

I would wish everyone that the telephone only has to be used to order a pizza and not for obtaining a medical certificate of incapacity to work.

Stay healthy and warm (labour law) greetings from Munich

Yours, Dr Erik Schmid