© gettyimages / KatarzynaBialasiewicz
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Video sick leave is now to be enshrined in law as a permanent option. Does it have the same probative value as a conventional AU?
Video sick leave was initially only intended as a temporary tool in the corona pandemic, but is now to be enshrined in law as a permanent option. A controversial topic for employers, as AU certificates have a high evidential value in court.
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Since July 2020, sick leave via video is no longer just an exception to the corona pandemic. According to the Federal Joint Committee’s directive on incapacity for work, doctors are able, under certain conditions, to determine the incapacity of a patient for the first time up to a period of seven calendar days solely on the basis of a video consultation. Until now, the patient had to be “immediately known” to the doctor issuing the AU certificate (or another doctor from the same professional community) due to previous treatment. In addition, the specific illness must not exclude the implementation of a video consultation. The situation is similar for the determination of the continued incapacity for work: This is only permissible if the patient’s initial incapacity for work has been determined through a direct personal examination by the same doctor.
AU certificates, which were issued solely through video consultation, are already being met with reservations by employers. Because the doctor cannot convince himself of the (in) workability of his patient via video to the same extent as he could in the context of a personal examination “face to face”.
These concerns are likely to increase further in view of the ministerial draft law that has now been submitted for the digital modernization of care and nursing. Federal Minister of Health Jens Spahn intends to relax the previous requirements for sick leave via video. In future, the criterion that the doctor is already personally known to the patient should be dispensed with in suitable cases. An initial sick leave as well as an extension of one should soon be possible even if there has been no personal contact between doctor and patient.
Are “Video-AU-Certificates” worth less?
If an employee falls ill, he is obliged to notify the employer immediately of the incapacity for work and its likely duration. If the incapacity for work lasts longer than three days, the employee must submit a medical certificate to the employer stating the existence and the expected duration of the incapacity for work no later than the following working day (Section 5 (1) EFZG).
According to the established case law of the Federal Labor Court, such an AU certificate submitted by the employee has a high level of evidence that the employee was actually ill and unable to work for the certified duration. Since this case law – as far as can be seen – so far only refers to cases in which the relevant AU certificate was issued after a direct physical examination of the employee, the question arises whether a “video AU certificate” has the same evidential value .
In principle, this will have to be answered in the affirmative, despite the concerns outlined above. As shown, employees are legally obliged to present their employer with a medical certificate from a doctor to prove that they are unable to work. There is practically no other, equivalent possibility and the law does not provide for it. If the legislature now decides to allow sick leave via video, it would be contradictory to allow employees who make use of this legally permissible variant to suffer disadvantages.
At the same time, the “Video-AU certificate” is not entirely free of risks, even for employees. As in the current version of the Inability to Work Directive, the draft bill does not specify in more detail for which cases of illness a sick note via video is “suitable”. It is possible that it will only become apparent in court that the employee’s illness in question was not accessible to a “video AU certificate”, which in turn would mean that the AU certificate was not properly issued and its evidential value considerably reduced is.
What does this mean for employers?
Employers will have to assume a high evidential value from AU certificates in the future – even if the sick leave is exclusively via video. However, since there are other requirements attached to the sick leave via video – namely the suitability of the illness for the examination via video – there is much to suggest that the employer, at least if there are concrete doubts about the actual incapacity for work, information from the employee about the method of implementation the investigation may require. If the employer of the illness in question also agrees on the suitability for a pure “video AU certificate” in the process, it should be up to the employee to demonstrate and prove suitability.
An outlook
It remains to be seen with what concrete content the ministerial draft will ultimately go through the formal legislative process. For reasons of legal certainty, it would be desirable in any case to specify the cases in which a corresponding video sick note should typically be possible, for example by naming standard examples.
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