Flu Season at Work in Germany: Who Is Actually Unable to Work?

Quick Hits

• Employees in Germany must immediately notify their employer of their incapacity to work and its expected duration.
• A doctor’s note is only required by law from the fourth calendar day onwards. Companies can request it from the first day.
• The transmission of the electronic certificate of incapacity for work (eAU) does not release employees from their obligation to report their incapacity for work. 

Reporting and Documentation Requirements in the Event of Incapacity for Work / eAU

As soon as they become aware of their incapacity to work, employees must notify their employer immediately, i.e., “without culpable delay.” This also applies to the continuation of the incapacity to work.

The law only requires a medical certificate to be submitted from the fourth calendar day of incapacity for work. However, employers can require submission from the first calendar day of incapacity for work if this is stipulated in the employment contract, in collective agreements, in works agreements, or by individual order. Weekends, public holidays, and non-working days count as calendar days.

For those with statutory health insurance, the doctor’s office sends the incapacity for work data electronically to the health insurance company. Employers can then access the eAU there. The obligation of employees to report incapacity for work remains unaffected. In the case of private health insurance or in other special cases (e.g., if electronic transmission is not possible or if caring for a sick child), employees must continue to submit the paper certificate in a timely manner.

Certificates of Incapacity for Work From Telemedicine Platforms

The acquisition of certificates of incapacity for work via telemedicine providers is becoming increasingly popular among employees. The Hamm Regional Labor Court has now ruled that a certificate of incapacity for work obtained via an internet portal without any contact with a doctor does not meet the requirements for the certificate of incapacity for work. If an employee submits such a certificate to their employer and thereby gives the impression of medically certified incapacity for work, this may justify extraordinary termination without notice and without prior warning.

Working From Home During Illness

During a certified incapacity to work, there is generally no obligation to work, either at the company or from home. Employees are exempt from work during this period.

There is generally no obligation to be available during certified incapacity for work. Only brief consultations on urgent, work-related issues that do not interfere with recovery and uphold the employer’s duty of care are permitted.

Unilaterally assigning other tasks despite incapacity for work is generally inadmissible. The situation is different if employees are unable to perform their original duties but are able to perform other reasonable tasks that are appropriate to their condition. If employers assign such work that is appropriate to the employee’s condition within the authority to issue instructions—for example, working from home—then legally speaking, the employee is no longer considered unfit for work in relation to the assigned work. However, this is subject to the condition that the employee is actually fit for work in relation to the specific, adapted work and that there is a corresponding contractual agreement regarding working from home. In practice, however, this will be difficult to prove, as employers are generally unaware of the nature of their illness.

What Happens If the Illness Occurs During Vacation?

If employees fall ill during their vacation and their incapacity to work is certified by a doctor, these days are not counted as part of their vacation. At least, this applies to statutory vacation entitlement.

In the case of illness abroad, additional notification and documentation requirements apply, such as immediately informing the employer of the address at the place of stay and informing the statutory health insurance fund of the incapacity to work.

A certificate of incapacity for work issued in a country outside the European Union has the same evidential value as a certificate issued in Germany. The circumstances of the individual case always are decisive. However, the certificate must show that the foreign doctor has distinguished between mere illness and incapacity for work.

Does Caring for a Sick Child Count as “Incapacity for Work”?

If a child under the age of twelve is ill, no other caregiver is available, and a medical certificate confirming the need for care has been provided, parents with statutory health insurance are entitled to unpaid leave from work. In addition, they are entitled to child sickness benefit for a legally limited number of calendar days per year. In these cases, the parent providing care is not considered to be unable to work. Employers are therefore not generally obliged to continue paying wages.

However, this does not apply if this has been agreed in an individual or collective agreement (collective bargaining agreement or works agreement) or if Section 616 of the German Civil Code (“Bügerliches Gesetzbuch – BGB”) has not been effectively excluded by contract. According to Section 616 of the German Civil Code, employees are also entitled to remuneration if they are temporarily prevented from working for personal reasons through no fault of their own for a relatively insignificant period of time. This also includes caring for a sick child, whereby in practice a period of up to five days is considered a relatively insignificant period as a rough rule of thumb. In the event of a child’s illness, a paper certificate of incapacity for work must be submitted; an eAU certificate is not sufficient.

Employer Tips

Employers may want to note the following:

• If employees violate their obligation to provide proof or their obligation to notify their employer in the event of illness abroad, companies may withhold continued payment of wages.
• Employers can issue a warning to employees who fail to notify or provide proof of incapacity to work due to illness.
• Employers may want to check certificates of incapacity for work issued by telemedicine platforms that issue certificates without medical contact based on an online questionnaire, and, if necessary, question and reject the certificate.
• Mobile working or working from home requires the ability to work and an appropriate contractual basis.
• In the event of medically certified incapacity to work during vacation, the corresponding vacation days must be granted retrospectively.

Key Takeaways

Employers may want to clearly define responsibilities and reporting procedures in the event of incapacity for work and communicate these to employees in writing. Employers may also want to set requirements and conditions for working from home. Reports and evidence of incapacity for work must be documented carefully and in compliance with data protection regulations. Implementing internal controls to verify certificates of incapacity for work is another step employers may want to take. In addition, Section 616 of the German Civil Code can be contractually excluded so that paid leave is not granted in the event of temporary personal incapacity to work, such as when a child is ill. As a general rule, there is no obligation to work during certified incapacity to work. The same applies when sick children under the age of twelve need to be cared for.

Ogletree Deakins’ Berlin and Munich offices and Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border, Germany, and Leaves of Absence blogs as additional information becomes available.

Daniela Schumann is a senior associate in the Berlin office of Ogletree Deakins.

Teodora Ghinoiu contributed to this article as a research assistant in the Berlin office of Ogletree Deakins.

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