How do I date a doctor

AU certificate

I Certificate of incapacity for work

I.1. Content of the certificate of incapacity for work
I.2. Disablement Certificate Policy
I.3. Activity / occupation of the contractor is important for the creation of an AU certificate
I.4. Pre-dating the certificate of incapacity for work
I.5. The doctor's liability for damages in the event of a false certificate of incapacity for work
I.6. Which doctor can issue certificates of incapacity for work?
I.7. Period of incapacity for work

II The electronic certificate of incapacity for work (eAU)

III Evidence of medical incapacity for work certificates

III.1. Shattering of the evidential value of the certificate of incapacity for work
III.2. No shaking of the evidential value of the certificate of incapacity for work
III.3. Result of the successful shaking of the evidential value
III.4. Ability to control the employer
III.5. Foreign certificates of incapacity for work
III.6. Working despite a certificate of incapacity for work?

 

I Certificate of incapacity for work

The inability to work does not always lead to continued payment of wages in the event of illness. Why not? Take a look at our video on the high evidential value of the AU certificate.

The Certificate of disability serves to prove to the employer that the contractor is not only sick, but also unable to work. The contractor who fails due to notification of illness must prove his incapacity to work - at least if the illness lasts longer than 3 days - to the client in accordance with the Continued Payment Act. The AG is even entitled to request proof of this from the AN from the first day of incapacity for work.

I.1. Content of the certificate of incapacity for work

The medical certificate of incapacity for work is used for this purpose. The properly issued AU certificate is the legally expressly provided and in this respect important proof of the existence of illness-related incapacity for work (BAG 01.10.1997 - 5 AZR 726/96).

The certificate of incapacity for work is issued exclusively by the attending physician and shows the start and the expected duration of the AU. In addition, information must be given as to when the incapacity for work was determined and whether it is an initial or a follow-up certificate.

I.2. Disablement Certificate Policy

Regarding the issuing of a medical certificate, there are guidelines that the treating physicians must adhere to. In the Joint Federal Committee's directive on incapacity for work, Section 2 (5) states:

“The assessment of the AU requires the insured person to be questioned by a doctor about the current activity and the associated demands and burdens. The result of the survey must be taken into account when assessing the reason and duration of the incapacity for work. A causal connection must be discernible between the illness and the resulting inability to continue working. (...) "

Problem: Few doctors adhere to this guideline!

I.3. Activity / occupation of the contractor is important for the creation of an AU certificate

If the employment contract stipulates that the AG can temporarily assign the AN an activity other than the one carried out, there is no AU if the illness does not prevent the AN from performing the other tasks. The ordering doctor must also consider and inquire about this before starting a AU certificate exhibits. Such a determination hardly takes place in practice, especially since the contractor himself often does not know which other occupations could be assigned to him by the client, and vice versa the client has knowledge of the operational possibilities, but not of the state of health or the cause of the illness . In order to remedy this deficiency, it is advisable as the AG to contact the treating doctor in certain cases and to show him the operational possibilities and AN should always ask their doctor which activities can still be carried out.

I.4. Pre-dating the certificate of incapacity for work

Furthermore, the doctor should not certify the AU for a period prior to the first consultation with the doctor (in the sense of "Exceptions are possible!"). Backdating the start of the AU to a day prior to the start of treatment or a retrospective certificate of the continued incapacity for work is only permitted in exceptional cases. However, according to the Incapacity Directive, this is only allowed for up to three days.

I.5. The doctor's liability for damages in the event of an incorrect AU certificate

In this respect, Section 106, Paragraph 3a of the Book V of the Social Code expressly provides for the doctor to be obliged to pay compensation to the employer and the health insurance company if the latter negligently or deliberately certifies the incapacity for work, although the prerequisites for this are not met. Knowingly issuing false certificates also fulfills the criminal offense of § 278 StGB (on liability for damages LG Darmstadt 19.09.1990 - 9 O 21/89). If employers inform the health insurances of their doubts, the doctor becomes the focus of the health insurer.

I.6. Which doctor can issue certificates of incapacity for work?

A Certificate of disability may only be drawn up by contract doctors. Hospital doctors, on the other hand, are only allowed to issue a certificate immediately after the employee has been discharged from the hospital for a period of up to seven calendar days.

I.7. Period of an AU certificate

According to the disability guideline, symptoms should be replaced by a diagnosis or a suspected diagnosis after seven days at the latest. In addition, incapacity for work should not be certified for a period more than two weeks in advance. A certificate of up to one month is only possible in exceptional cases. Follow-up certificates should be issued no later than the day after the previous certificate has expired.

 

II The electronic certificate of incapacity for work (eAU)

The classic paper certificate of incapacity for work, the so-called "yellow certificate", is to be replaced by an electronic certificate of incapacity for work (eAU) in the course of digitization. The background to this is the Third Bureaucracy Relief Act, which aims to reduce bureaucratic costs for citizens and companies. According to the statements of the federal government, the savings potential in these cases amounts to around 550 million euros.

In the future, the procedure for reporting and providing evidence of incapacity for work should therefore be structured as follows:

The employee with statutory health insurance seeks a resident doctor. After a detailed examination, the attending physician certifies that the employee is incapable of working. An eAU is then generated, which is forwarded to the employee's health insurance company via a communication server. There the data is processed and stored on another communication server. The employer then has the option or the obligation to request this data from the health insurance company and then receives the eAU generated by the treating doctor, which contains the usual components (start and duration of the inability to work, identification as primary or secondary illness and date of issue) of the contains previous certificate of incapacity for work in paper form. The eAU must be electronically signed by the issuing doctor.

After the changeover, the employee no longer has to submit a certificate of incapacity to work to the employer. However, the obligation to notify the employer of the incapacity for work remains.

The process described above requires a change in the legal situation.

On January 1st, 2022 the new regulation of § 109 SGB IV comes into force, in which it says as follows:

1.

I. After receipt of the incapacity data in accordance with Section 295, Paragraph 1, Clause 1, Number 1 of Book Five, the health insurance company must create a report for the employer to retrieve, which in particular contains the following data:

  • the name of the employee,
  • the beginning and the end of the incapacity for work,
  • the date of the medical declaration of incapacity for work and
  • the identification as an initial or follow-up report.

II. In the cases in which the health insurance company receives the incapacity data according to § 295 paragraph 1 sentence 1 number 1 of the fifth book for a marginally employed insured person, it has the data according to sentence 1 on the day of receipt for the responsible collection point at the German pension insurance Knappschaft-Bahn-See available for retrieval.

III. The Deutsche Rentenversicherung Knappschaft-Bahn-See has to retrieve this data for the employer from the responsible health insurance company upon request by the employer and to forward it to the employer immediately.

IV. If the employer commissions a third party with the retrieval, this third party may process the data.

V. The obligation of the attending physician to provide the insured person with a medical certificate confirming the incapacity for work in accordance with Section 73 (2) sentence 1 number 9 of Book 5 in conjunction with Section 5 (1a) sentence 2 of the Continued Remuneration Act remains unaffected.

2.

I. If the health insurance company determines on the basis of the information on the diagnosis in the incapacity data in accordance with Section 295, Paragraph 1, Clause 1, Number 1 of Book Five and on the basis of other data available to it, that the continued payment of remuneration in the event of illness will expire due to creditable previous illness periods for an employer, so it sends a report to the employer concerned with details of the periods of previous illness relevant to him. II. Sentence 1 does not apply to marginal part-time employees.

3.

Paragraphs 1 and 2 do not apply to employees according to Sections 8a and 12.

4.

I. The Central Association of Health Insurance Funds regulates the details of the data sets and the procedure in principles. II. The principles require the approval of the Federal Ministry of Labor and Social Affairs in agreement with the Federal Ministry of Health and the Federal Ministry of Food and Agriculture; the Confederation of German Employers' Associations must be heard prior to approval.

But the Continued Remuneration Act (EFZG) must also be adapted to the changed handling.

In § 5 EFZG, the following regulation will be added from 01.01.2022:

"(1a) Paragraph 1, sentences 2 to 5 does not apply to employees who are insured with a statutory health insurance company. 2They are obliged to determine the existence of an incapacity for work as well as its probable duration at the times specified in paragraph 1 sentences 2 to 4 and to have a medical certificate issued in accordance with paragraph 1 sentence 2 or 4. 3Sentences 1 and 2 do not apply 1. to persons who have marginal employment in private households (Section 8a of the fourth book of the Social Security Code), and 2. in cases of incapacity for work by a doctor who does not participate in the care provided by a contracted doctor. "

The employee's submission obligation is therefore no longer applicable. However, the employee continues to receive a certificate of incapacity for work issued by the treating doctor. The employer now has the duty to take the initiative.

The treating physicians are already issuing eAUs. However, the doctor is still obliged to temporarily issue paper certificates of incapacity for work, which the employee must then continue to submit to the employer.

Due to the Appointment Service and Supply Act (TSVG), contract physicians were obliged to electronically transmit the AU data to the health insurance companies from 01.01.2021. Due to the ongoing corona pandemic, however, it was not possible to set up the necessary technology across the board, so that this can now be expected from October 1st, 2021.

From July 1st, 2022, the incapacity data will only be forwarded to the employer digitally. This implementation should also take place from January 1st, 2022 and was postponed due to the corona pandemic.

According to the current status, it remains to be noted that the treating contract doctor is currently still obliged to hand over at least a certificate in paper form, which the employee then has to present to the employer. As an employer, you should continue to insist on this in order to prevent any abuse. If you have any doubts about the correctness of a certificate of incapacity for work, please do not hesitate to contact us, we can show you various approaches.

 

III Evidence of medical incapacity for work certificates

The medical health insurance certificate is a private document. However, it is not like with other documents that the correctness is presumed by law. However, evidence of the first appearance speaks for the correctness of the content of the medical certificate (BAG 02/19/1997 - 5 AZR 83/96).

The judge of the crime, i.e. the judge at the labor court, can therefore usually provide evidence of incapacity for work by submitting the medical certificate Certificate of disability as provided (BAG 01.10.1997 - 5 AZR 726/96).

The only consolation for the employer is that the proof of the first appearance only applies in favor of those AU certificates that have been issued in compliance with the work incapacity guidelines. As a rule, it is difficult to prove and prove that this is not the case.

However, the employer has the option of shaking the evidential value of the health insurance certificate. For this, the client does not have to completely refute the evidence of the first appearance; it is sufficient if he can present facts that shake the evidence of the first appearance.

III.1. Shattering of the evidential value of the certificate of incapacity for work

The evidential value of the medical Certificate of disability is shaken if the facts presented by the employer give rise to serious doubts about the certified incapacity for work.

This then has the consequence that the full burden of proof for the incapacity for work rests with the contractor again. In the case of an initially unsubstantiated medical prohibition of employment, the evidential value is shaken if the contractor does not provide a medical certificate, despite the employer's request, about the specific working conditions the doctor assumed when the prohibition of employment was pronounced and what restrictions on use exist. Because only if the employer is aware of these circumstances can the employer check whether he is assigning other reasonable job opportunities to an AN that do not conflict with the employment ban (BAG 07.11.2007 - 5 AZR 883/06).

The following cases shake the certificate of incapacity for work:

  • Issuance of a certificate of incapacity for work without an examination or only after a telephone consultation (BAG 11.08.1976, BB 77, 119)
  • Announcement of sick leave by the employee (BAG 04.10.1978 - 5 AZR 326/77)
  • Notification of sickness after rejection of a vacation request in the requested vacation period
  • repeated sickness reports by foreign employees after their home leave
  • Rebooking of a return flight before sick leave to the day at the end of the sick leave (LAG Hamm 06/08/2005 - 18 Sa 1962/04)
  • repeated joint and simultaneous sick leave of spouses after the end of the vacation
  • Failure to comply with a summons for an examination by a medical examiner or by the medical service of the health insurance companies
  • strenuous exercise during illness
  • Leisure activity incompatible with incapacity for work (ski vacation of an expert from the medical service who is unable to work due to meningitis, BAG 02.06.2006 - 2 AZR 53/05)
  • Work outside of the workplace, for example in your own part-time farming or building your own house
  • Retrospective determination of incapacity for work over a period of more than two days (LAG Cologne - judgment of November 21, 2013 - 4 Sa 588/03) - The Incapacity Directive considers backdating of up to three days to be permissible (see above)!

III.2. No shaking of the evidential value of the certificate of incapacity for work

In principle, the following are not sufficient for shaking the certificate of incapacity for work:

  • Absence of the employee from his home
  • Walks or light exercise
  • Errands or shopping aisles of the employee
  • Meet friends and pursue a common hobby

III.3. Result of the successful shaking of the evidential value

The burden of proof is the medical one Certificate of disability shaken, the contractor is then again responsible for providing full evidence of the alleged incapacity for work. In this evidence, the contractor can present a detailed presentation of facts, the naming of the doctor as a witness and his release from medical confidentiality (BAG 07.12.1995 - 2 AZR 849/94).

The doctor can then be asked individually about the diagnosis, the course of the illness and the effects on the ability to work at the specific job. In particular, the doctor is familiar with the circumstances that shake the evidential value of the AU certificate have led to confront and ask whether he would have put the contractor on sick leave even if these circumstances were known.

Problem doctor

As a rule, a doctor will not question the diagnosis he has made, but will underpin it with medical terms and explanations so that he will only contradict it in exceptional cases. But the diagnosis itself is often vulnerable. If z. B. an AN tells his doctor that he has a gastrointestinal infection and diarrhea, then the doctor will issue the AN with a certificate of incapacity for work. That is because he is allowed to believe his patient.

If, however, the high evidential value of the certificate of incapacity for work is shaken (he did sport in the fitness studio) then the doctor is asked in court how he came to the diagnosis. If he did not perform any examinations or made any findings, the diagnosis was made solely on the basis of the fact that the doctor believed his patient. This is not enough for full proof of incapacity for work and the contractor will lose his process accordingly. Because after the shaking of the high evidential value of the certificate of incapacity for work, the contractor has the full burden of proof that he is actually ill and unable to work.

If there are justified doubts, these will be borne by the employee in the context of continued pay. Evidence can also be provided by other means of evidence.

III.4. Ability to control the employer

The employer has the option of receiving an expert opinion from the med. Service of the health insurance companies to check justified doubts about the Certificate of disability to demand. The effectiveness of this control option suffers from the fact that the health insurance company often only complies with this request after the six-week period of continued payment has already expired. The statutory regulations stipulate that the health insurance company must be checked immediately after the medical declaration of incapacity for work has been presented. According to the statutory provision, it is further stipulated that doubts about the correctness of certificates of incapacity for work are justified in particular by the fact that the employee is noticeably often or conspicuously often only incapacitated for a short period or the onset of the incapacity often falls on a working day at the beginning or end of a week .

Also of importance is § 275 Abs. 1b SGB V, according to which the medical service randomly checks the accuracy of AU certificates has to check. This control option fails, however, if the contractor is insured in a private health insurance company, because then this statutory regulation does not apply.

III.5. Foreign certificates of incapacity for work

If an employee falls ill abroad, he must prove his incapacity for work by means of a foreign certificate of incapacity for work. Their correctness cannot be questioned across the board.

However, the contractor must prove that the doctor was familiar with and observed the distinction between illness and incapacity for work that applies to German law on continued payment of wages. This is especially true for doctors abroad outside the EU.

III.6. Working despite a certificate of incapacity for work?

Many employees come into the office even though they are not quite fit. There are cases in which the employees are unable to work on sick leave, but are still able to do their job.

In this respect it applies that a Certificate of disability does not represent a work ban, but only a prognosis issued by the doctor about the expected course of the incapacity for work. If an AN feels healthy and able to work again despite a certificate of incapacity for work, he may in principle also work.

The employer who employs an employee who is unable to work can, however, violate his duty of care and for this reason make himself liable for damages. If an employee who is officially unable to work returns to work prematurely, the employer should make sure that the employee actually makes an impression of being able to work. If he has complied with this, he does not have to request a medical certificate stating that he is fit for work; the employee's declaration is sufficient. If, despite the employee's declaration that he is able to work, circumstances suggest that he is not yet able to work again, the employer must, as part of his duty of care, call in the company doctor or otherwise have the employee's state of health checked. In this case, a doctor's certificate may be required, which declares the contractor to be able to work.

For example, if the truck driver comes to work with an arm in a cast and despite a certificate of incapacity for work, because he is of the opinion that he can control the truck with only one arm, the employer - who knows about these circumstances and still lets the contractor work - make a liability for damages in the event of a possible accident at work.

But the contractor also has a duty of care. If it is foreseeable that the contractor will endanger his recovery or even worsen the state of illness by taking up work prematurely, he may have the obligation to wait for the duration of the probable incapacity for work.

(MW19.9.19)

 


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