Discontinuation of the "yellow slip" as of January 2023

Changes in the sickness notification process

Until now, sick employees received their certificate of incapacity for work ("AUB") - also known as the "yellow slip" - in paper form in triplicate, with a fourth copy remaining in the treating practice. One of the three copies was for submission to the health insurance fund, the second remained with the employee, and the third copy was for submission to the employer. The employees thus had the obligation to submit the AUB to two places - a process that was not without effort and was prone to disruptions.

This is where the legislator's idea comes in: Employees and companies should be relieved in the future, and the healthcare system should be digitalized and debureaucratized at the same time.

Central legal changes to this plan are to be found in Sec. 5 pars. 1a of the Continued Remuneration Act (Entgeltfortzahlungsgesetz "EFZG") and in Sec. 109 of the Fourth Social Code (Viertes Sozialgesetzbuch "SGB IV"). In the future, employees with statutory health insurance will no longer be obliged to submit the AUB to their employer. There is only an obligation to have the incapacity to work determined by a physician. The treating physician then electronically reports the data that was previously written down on the AUB to the employee's health insurance fund, which makes the data available for retrieval by the employer upon receipt.

No changes for privately insured employees

This applies in any case to contract physicians of the statutory health insurance, so-called Kassenärzte. Outside of the statutory health insurance, however, everything remains the same: Private physicians will continue to issue an AUB in paper form. Thus, in particular for privately insured employees nothing will change.

Much else remains the same as well. Employees who fall ill are still required to report sick immediately. The point in time at which employees must have their incapacity for work medically determined also remains the same. The following still applies: Unless the employer specifies otherwise, the medical determination does not have to be made until the fourth day of illness. Finally, the eAUB also has the same high probative value as a paper AUB. In the event of disputes about continued payment of remuneration, employees can therefore generally rely on the validity of the eAUB.

Adjustment needs for employers

However, the changes to the sickness notification process affect most employees. For privately insured employees, employers can and must continue to use the usual sickness notification process. However, for employees with statutory health insurance - likely the majority of the workforce in most cases - employers will need to adapt their internal processes to comply with the changes:

Create an internal query process

Because of the shift in initiative burden - employers now have to act to obtain the AUB - the first necessary step is to set up a reliable process for electronically querying health insurance companies. In doing so, the following key points have to be considered:

• Query only permitted after notification of illness

It must be ensured that the query is only made after the notification of illness. A "precautionary" query when employees are merely absent is not permitted. In contrast, a query is permissible before the time at which the employees are obliged to have their incapacity for work determined by a doctor, but this will usually not make sense because a determination that is not mandatory is more likely to be the exception.

• Actual inquiry recommended if prerequisites are met

If a sickness notification is given, it seems advisable to actually carry out the query despite the additional effort involved, in order to counteract any misuse. A timely query is also necessary in order to be able to react adequately in the event that the eAUB cannot be accessed.

• Order to submit at an earlier point in time possible in compliance with the right of co-determination

When designing the query process, it should also be noted that, according to the announcements of the National Association of Statutory Health Insurance Funds (GKV-Spitzenverband), access to the eAUB will generally only be possible on the day following the medical determination. If there is no other specification, a successful query can therefore only be expected on the fifth day of the illness. In order to bring this into line with the AUB in paper form, employers may consider requesting that statutory insured employees have their  incapacity for work determined on the third day of illness, so that the eAUB can already be retrieved on the fourth day. However, the works council's right of co-determination pursuant to Sec. 87 para. 1 No. 1 of the Works Constitution Act (Betriebsverfassungsgesetz "BetrVG") must be observed here.

Communication to employees

In view of the decades-long practice of the "yellow slip", which is now changing for most employees, the requirements for action that will apply from now on should be clearly communicated to employees in order to avoid unnecessary errors in the sickness notification process and any subsequent disputes about continued payment of remuneration.

Dealing with non- retrievability of the electronic certificate of incapacity for work

An internal process should also be developed for dealing with cases in which the eAUB cannot be retrieved from the health insurance fund, even though the requirements for this are actually met. It should be noted here that the non-accessibility of the eAUB is not necessarily due to an omission on the part of the employees, but can also have technical reasons from the sphere of the physicians or health insurance companies.

• Contact employees as soon as possible

Employers should therefore first approach their employees and inquire whether a medical determination of incapacity for work has been made. This should be done as soon as possible in order to clarify the situation within the current payroll period so that a decision can be made on the payment of wages (see below).

• No obligation to present the copy intended for the employees

The employer cannot request the copy of the AUB issued to the employee by the attending physician. This is because this copy contains the diagnosis on which the incapacity for work is based in the form of a diagnosis code. However, even in a redacted state, employers should not be able to request the copy to be handed over because the copy serves exclusively to provide evidence for the employees in any proceedings for continued payment of remuneration. However, the employees themselves will often have an interest in providing the copy voluntarily in order to eliminate the suspicion of unauthorized absence.

• No right of retention with regard to pay

If, on the other hand, there is no voluntary submission, the legal position of employers in the electronic reporting procedure is restricted. The previously known right to withhold pay will probably no longer apply in this case.

• Withholding of pay entails risks

In cases in which the eAUB cannot be retrieved and employees refuse to submit their copy, the only option left to employers is to simply not pay out the wages for the days of incapacity for work. Admittedly, this carries the risk that the payment of wages was wrongfully omitted if the employees can later prove that they were actually incapacitated for work. Employers would then have to pay the wages in arrears and would also be in default of payment.

• Reclaiming wages that have already been paid is difficult in practice

In most cases, however, there is little practical prospect of reclaiming wages that were initially paid despite doubts about the employee's incapacity to work. Employees are often able to defend themselves against claims for wage recovery by invoking the defense of financial loss. It is only likely to be possible to rebut this objection in clear cases ("truancy").

Adjustment of standard employment contracts

Standard employment contracts and - less frequently - works agreements, which are usually linked to the previous sickness notification process, should also be updated. The relevant passages must be adapted to the new legal situation. It should not be forgotten, however, that the previous sickness notification process continues to apply to privately insured employees. In this respect, the new standard employment contracts should contain differentiating wordings.

Conclusion

There is thus a need for action for employers. For those who have not yet started, there is no more time to waste. Especially for dealing with "suspicious" cases of illness, the new legal situation requires a new strategy in order to be able to react adequately to disputes about continued payment of remuneration. This is all the more true since, under the eAUB, employers will no longer be able to identify which physicians issued the eAUB. It is therefore likely to be even more difficult in the future to identify "suspicious" eAUBs, such as those issued without prior contact with the physician (e.g. "Online AU").