Chancellor Friedrich Merz (CDU) and the leaders of the coalition have announced a comprehensive reform package. A key point is the abolition of telephone sick leave and the requirement to provide a certificate from the first day of illness. The aim is to reduce, according to Merz, the “exorbitant increase in sick leave in companies”. Collective bargaining agreements or special company regulations should remain possible.
This raises specific questions for employers and HR:
- Which existing regulations apply?
- What does the resolution mean as long as there is no draft law yet?
- Is there now a concrete need for action?
Our overview shows what already applies, what should change and where the reform has so far raised more questions than it has answered.
AU obligation: What already applies now?
In principle, sick employees must submit a medical certificate from the fourth day at the latest in accordance with Section 5 Paragraph 1 of the Continued Payment of Wages Act (EZGF). However, companies are already free to request a certificate from day one – without any further justification.
An option for employers would therefore become a legal rule in the future. It would then be up to the company to deviate from the requirement for a certificate from day one, which would reverse the previous logic.
What takes precedence: employment contract or law?
One approach to answering this question could be the so-called favourability principle from German labor law: It states that in the case of several regulations, such as law, collective agreement, employment contract or company agreement, the option that is most favorable for the employee always applies. In such cases, according to lawyer and labor law expert Pascal Croset, “it is specifically examined which regulation offers the better conditions for the specific situation”.
However, another principle also applies, namely the so-called ranking principle: It arranges “the legal sources according to a fixed hierarchy,” says Corset on its website. Accordingly, the law applies first, followed by the collective agreement, the works agreement and finally the employment contract.
As things currently stand, it is not possible to say reliably what this will mean for sick notification and the requirement to provide a certificate in the future. It is currently unclear how exactly the legal regulation for the submission of an AU will be designed from day one and whether it contains any opening clauses for collective agreements and works agreements.
Consequence: Longer sick leave instead of lower sick leave?
Critics also question the goal of a certificate of incapacity for work (AU) from day one. According to Christian Lorenz, Managing Director of the German Society for Personnel Management (DGFP), it is to be welcomed that sickness-related absences are becoming more of a focus. However, such an obligation could not reduce sickness rates, but rather have the opposite effect, so that “nothing would be achieved from an absenteeism perspective”. Instead of recovering for a day or two and then returning, sick employees would be forced to come to the practice on the first day. The doctor might then write you off sick not for one day, but for several days.
In response to a query from our editorial team, Bastian Schmidtbleicher-Lück, Managing Director of Moove, points out another aspect that is sometimes overlooked in the debate: “The sharp increase in sick leave since 2022 is to a large extent not a real effect, but a statistical one, triggered by the introduction of electronic sick leave reporting.”
More general suspicion and presenteeism instead of a solution?
The labor lawyer Frank Holland sees a more fundamental problem in the reform project: “Is there a general suspicion behind this measure that employees are actually “making them sick” even though they are able to work?” Holland asks himself in a LinkedIn statement. Schmidtbleicher-Lück is of a similar opinion: A blanket requirement for a certificate is “always a signal of distrust to 100 percent of the workforce in order to address behavior that demonstrably only affects a small minority.”
Measures like these continue to fuel the debate about presenteeism: people drag themselves to work sick even though they don’t feel fit to work. Schmidtbleicher-Lück believes the danger of presenteeism is real and describes it as “the blind spot of the entire debate”. A higher hurdle for reporting sickness in the form of an AU from day one increases the reflex to sit down at the desk when sick. The managing director puts the cost of a single day of absence at at least 360 euros. The costs of presenteeism, however, would be around twice as high. “A lower sick leave on paper can be more expensive than an honest one,” said the managing director.
After the reform was announced, many open questions remain
The discussion that the reform decision has triggered makes it clear that many central questions are still unresolved. Chancellor Friedrich Merz explained in the ZDF program “Maybrit Illner” that you don’t have to go to the doctor’s office on the first day, but you do have to be able to show a certificate of incapacity for work from the first day.
This statement obviously contains a contradiction: If telephone sick notes are to be abolished, the question arises as to how AU can be issued without the doctor having seen the sick person in person or by telephone. There is also the question of whether a doctor will be allowed to issue a certificate retroactively in the future, i.e. for the first day of illness on the second or third day. Questions like these remain unanswered to date.
According to Section 5 Paragraph 3 of the Incapacity for Work Directive (AU-RL), the following currently applies:
„1In principle, incapacity for work should not be certified for a period before the first medical visit. 2A backdating of the start of the incapacity to work to a day before the start of treatment, as well as a retroactive certificate of the continued existence of the incapacity to work, is only permitted in exceptional cases and only after careful examination and generally only for up to three days.
For HR practice: HR managers now have these options
1. Wait:
There is currently only a coalition decision. This means that there is political will, but a concrete draft law does not yet exist. Before such a regulation becomes legally binding, the legislative process begins, a process that usually takes several months.
For HR, it basically means that there is currently no immediate pressure to act. Until further notice, Section 5 Paragraph 1 of the Continued Payment of Remuneration Act applies.
2. Check existing contracts:
If you don’t want to remain passive, you can use the meantime to prepare for important questions. To do this, HR can, for example, check what employment or collective agreement or company regulations regarding sick leave exist in your own company.
3. Use the reform resolution as a strategic impetus:
Employers could investigate in which areas, in which activities and according to which patterns absences occur. According to Bastian Schmidtbleicher-Lück, the following four levers help with such an absence analysis:
- guide: HR can specifically train managers to conduct return interviews in an appreciative manner rather than in a controlling manner. According to Schmidtbleicher-Lück, this is the single strongest lever in absenteeism management.
- Company integration management (BEM): The HR department can ensure that the BEM is consistently implemented. In addition, earlier support can be provided from the 25th day of absence, even before the statutory BEM limit is reached.
- Work design: HR can promote ergonomics, risk assessments of psychological stress and flexible working models. For example, companies could offer slightly ailing employees work from home instead of having a full day off.
- Company health management (BGM): HR can build a strategically anchored WHM that demonstrates business impact and thereby secures the backing of management.
Mara Marx is a volunteer at Human Resources.
