Reducing incapacity to work and sick leave: What labor law allows

High absenteeism and sickness rates can be reduced. There are various ways in which employers can achieve this.

Chancellor Merz wants to abolish sick notes by telephone in order to reduce periods of incapacity for work. However, statutory health insurance physicians are calling for employers to be deprived of the right to demand a certificate of incapacity for work (AU) within the first three days.

But what are the legal requirements for telephone sick leave and what would the proposal by the statutory health insurance physicians mean for employers? What other options does employment law offer companies to reduce sick leave and prevent absenteeism?

When a telephone AU is currently possible and what changes would mean in practice

Chancellor Merz sees the abolition of telephone sick notes as a possible way to reduce sick leave and increase work performance. This has been the case so far:

Doctors may issue a sick note for minor illnesses after taking a medical history over the phone. The decision as to whether the symptoms can be clarified over the phone or require an examination by video or even in the practice is at the doctor’s discretion. However, the prerequisite is that the patient is already known to the practice. A first-time certificate of incapacity for work by telephone can also be issued for a maximum of five calendar days.

The telephone AU was first introduced during the coronavirus pandemic – initially for a limited period – to avoid contact and infection. It was finally made permanent in 2023 to relieve the burden on doctors’ surgeries.

Early compulsory certification is possible, but not a general solution

According to Section 5 (1) EFZG, a sick note must only be submitted from the fourth calendar day. However, employers may also request a medical certificate from the first day of incapacity for work.

Labor law permits the obligation to take sick leave from day 1, either contractually or by individual order. Such an order or regulation increases the hurdles for employees to “take sick leave”.

However, a generalized application can send a signal of fundamental mistrust. This can cost motivation and therefore productivity and ultimately even increase absenteeism. According to a decision by the Federal Labor Court (BAG) in 2000 (Ref. 1 ABR 3/99), the co-determination right of the works council pursuant to § 87 Para. 1 No. 1 BetrVG must be observed when introducing a general regulation in the company. The same should apply if the employer does not decide individually on the earlier submission of a sickness certificate, but instead establishes general regulations for this. In this respect, the regulations contained in some collective agreements on the submission of sick leave certificates take precedence.

Situational use in individual cases, based on specific facts, will therefore remain the more appropriate (and co-determination-free) solution. This also meets the interests of the medical profession, which would like to avoid medically unnecessary visits to the doctor.

AU as evidence: high evidential value, but not unshakeable

Regardless of the type of contact with the doctor, the certificate of incapacity for work has a high evidential value. However, the probative value can be shaken, especially in the case of objective contradictions.

Reasons for reasonable doubt about the certificate of incapacity for work are, for example

• The AU certificate is backdated. This is only permitted in exceptional cases and only for up to three days.

• The certificate of incapacity for work is issued for longer than two weeks. This is also only permitted in exceptional cases.

• Incapacity for work is interrupted by weekends or vacation days.

Employers can act even if the certificate is correct

Even if the probative value of the sick note cannot initially be shaken, employers can act if they suspect that employees are “taking sick leave” and call in the Medical Service of the health insurance funds. Reasons for this would include

• conspicuously frequent incapacity to work, often only for a short time,

• Frequent incapacity to work before or after the weekend,

• the certifying doctor’s practice has attracted attention with particularly frequent sick notes.

Preventive measures can reduce absenteeism

Absenteeism can also be reduced in the long term through preventative measures. Many things are required by law anyway, such as the risk assessment including mental stress in accordance with § 5 ArbSchG. The limits of the Working Hours Act must also be observed.

Voluntary measures such as appreciative and good leadership can also prevent absenteeism. Regular staff appraisals can bring dissatisfaction and stress to light, which can be eliminated under certain circumstances.

Company integration management (BEM) as a mandatory procedure

If employees are unfit for work for more than six weeks without interruption or repeatedly within a year, employers must offer company integration management (BEM). The aim of BEM is to overcome current incapacity for work and to find out which services or assistance can be used to prevent renewed incapacity for work. In a meeting in which, with the employee’s consent, a member of the works council and, if necessary, a member of the representative body for severely disabled employees or the company doctor also take part, both ergonomic measures and work organization adjustments can be determined. In addition, gradual reintegration or external support services can be advocated and initiated.

Attendance bonuses and reduction of special remuneration: legally possible, but risky

Some companies grant bonuses for low absenteeism. In principle, this is legally possible as long as the rules are non-discriminatory. Attendance bonuses must not lead to certain groups of employees being systematically disadvantaged, in particular people who are absent more frequently due to illness because of a disability, chronic illness, pregnancy or other legally protected characteristics.

However, attendance bonuses can also lead to employees dragging themselves to work sick and infecting others or making mistakes at work.

Agreements on the reduction of benefits that are provided in addition to regular pay (special remuneration) are also permitted. However, the Continued Remuneration Act (EFZG) sets strict limits on the amount of the reduction.

An alternative to attendance bonuses or reductions in benefits would be rewards for taking part in preventive measures or health courses.

Conclusion: The sickness rate does not depend solely on the legal structure of the sick leave

Whether the telephone sickness absence remains or falls – employers can question the incapacity to work in certain cases. And there are many ways for companies to influence the sickness rate. However, when introducing a general rule requiring sick leave from the first day of illness, the co-determination rights of the works council must be observed. Employers should only make use of this in justified cases. In any case, employers’ hands are not tied in the event of abnormalities and doubts about incapacity for work. And preventive measures can prevent absenteeism altogether.