As of: March 10, 2024, 7:08 a.m
By: Fabian Hartmann
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When in doubt about their health, many people decide not to work.
But what can companies do if employees fail?
Munich - The number of sick people in Germany is at a record high: According to the current DAK health report, there will have been a total of 13 percent more cases in 2023 compared to the previous year.
Overall, companies in Germany had a sickness rate of 5.5 percent last year.
Well over half of the employees submitted at least one sick note from January to December 2023.
On average, every employee in Germany has 20 days of absence per year.
Most of them in 2023 were due to colds, followed by musculoskeletal diseases and psychological diagnoses.
But what options do companies have if employees call in sick so frequently - for example on Mondays or on weekends - that the suspicion of being on sick leave is confirmed?
And what legal basis applies in such cases?
Failing to do so is not uncommon - 59 percent choose not to work when in doubt
Anyone who wonders whether they should work or stay at home when sick because of minor complaints such as a runny nose or a sore throat in the morning and decides in favor of the latter with a guilty conscience is not alone in this country.
According to a study by Pronova BKK, the so-called bedside decision is in favor of reporting sick for 59 percent of employees in Germany, even though they are able to work.
10 percent of them do this often, 23 percent sometimes and 26 percent rarely.
36 percent, on the other hand, say they always do their job as long as their health allows it.
In the event of illness, employees are obliged to inform their employer immediately about their inability to work - and also how long the inability to work is expected to last.
“The employee can use the telephone, email, SMS, WhatsApp or other messenger services,” says Markus Bohnau, specialist lawyer for labor law at the Kliemt law firm, to the
Handelsblatt
.
When do employees have to submit a certificate of incapacity for work?
Employees only have to present a certificate of incapacity for work (AU) if they are on sick leave for more than three days.
“However, the employer can also request an AU earlier, says Cologne lawyer Nathalie Oberthür to the
Handelsblatt.
Accordingly, in deviation from the legal regulation, the employer can request a medical certificate from the first day of illness.
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A certificate of incapacity for work (symbolic photo) © IMAGO/Burkhard Schubert
But is the employer allowed to ask the reason for the inability to work?
Basically yes, explains Nadja Roß-Kirsch, specialist lawyer for labor law at the law firm Rödl & Partner, to the
Deutsche Handwerkzeitung
(DHZ).
“However, employees do not have to provide any information about this.
“This is subject to privacy protection,” she emphasizes.
Unexcused sick leave?
Then there is a violation of the reporting obligation
Anyone who is absent from work without excuse risks violating the reporting requirement.
In this case, the employer can issue a warning.
However, dismissal without further ado is not possible.
“Termination should always be the last resort,” explains Roß-Kirsch to the DHZ.
The employer can only terminate the contract if there has been at least one warning.
If the employee's health makes it impossible to inform his employer about his inability to work, other legal principles apply in exceptional cases: "In some cases, the employee cannot report sick at all, for example if he is in a coma," says the lawyer.
In such a case, the employee obviously does not have to fear any consequences under labor law.
But what happens if an employee reports sick but doesn't provide a certificate for a long time?
In this case, too, there is a violation of the reporting obligation.
“This reinforces the suspicion that the employee is actually not sick,” emphasizes Roß-Kirsch.
Depending on how much evidence there is of suspicion, termination or even dismissal without notice could be given in such a case.
According to legal expert Bohnau, the employer also has the option of refusing to pay wages.
Suspicion of blue-collar?
Health insurance companies can prepare reports
In principle, medical certificates in Germany have a high evidentiary value because the Federal Labor Court attributes this to them.
“The judges generally assume that no doctor would issue a false certificate out of pure kindness,” explains lawyer Roß-Kirsch.
For employers, this means: As soon as an employee can provide a medical certificate, it becomes difficult to convict them of being a “blue-collar worker”.
Nevertheless, employers' hands are not completely tied.
“There are options for action towards the doctor, but these are very difficult to enforce in practice,” says Roß-Kirsch.
Theoretically, the employer could contact the Association of Statutory Health Insurance Physicians (KV) or report the doctor for fraud.
However, the lawyer does not give these options too great a chance of success.
If employers suspect that employees often take sick leave despite not being unable to work, they can also contact the health insurance company's medical service.
If there is suspicion, the health insurance company can prepare a report.
The problem: Employees are questioned there using checklists, among other things.
“As a rule, employees don’t act so stupidly that the inspectors find the employee healthy,” estimates Roß-Kirsch.
The result of such an investigation would often come to nothing.
Employers also have the right to question employees' certificates in certain cases
However, employers also have the option of questioning their employee's certificate.
If doubts about an employee's certified incapacity for work are justified, the employer has the option of obtaining an expert opinion from the Medical Service (MDK).
The MDK is commissioned by the affected employee's health insurance company.
He can check whether the employee's incapacity to work is legal.
But in which cases can the employer involve the MDK or take other steps under labor law?
For example, if the employee literally announces his absence.
The employer can justify this, for example, by saying that the employee wanted to register a day of vacation, but this could not be granted.
If the employee is then absent due to illness, it is likely that he or she is feigning illness.
Or if the employee is often absent at a certain rate, for example every Friday or Monday: In this case too, the employer will usually prevail in court if it questions the employee's AU certificate.
(fh)