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“Smiley with a thermometer in the mouth”: the “WhatsApp doctor’s certificate”

WhatsApp simplified communication. For (almost) every situation there is a smiley or an emoji. The following combination of smileys and emojis:”waving hand,” “nerd face,” “see-no-evil monkey,” “face with a thermometer in the mouth,” “face with a head bandage,” “hospital,” “thumb down,” “tablet,” “syringe,” “bed,” “sleeping face,” and “house with garden” means: “Hi Boss, I’m really not well. I am sick and will stay in bed to sleep until I feel better. It is not possible for me to come to work; I’m staying home” in WhatsApp-speak. This might be one way to let your employer know that you are ill. However, would a “WhatsApp certificate of incapacity to work” also be permissible? “Thoughtful face.”

Over the last few weeks there has been a lot written about the online or WhatsApp certificate of incapacity to work. Since January 2019, you can apply for doctor’s certificate for only EUR 9.00 on AU-Schein.de, and will receive the certificate via WhatsApp. The lift of the ban on the remote treatment of patients has made it possible for doctors to treat patients via various communication mediums, without personally seeing and examining them. “Surprised face,” “face with a furrowed brow and open mouth.”

Employee obligations in the case of incapacity to work

Legally speaking, an employee is incapacitated and unable to work in the case of illness when the physical or mental state of the employee is abnormal to the extent that the employee is no longer able to carry our their work or is unable to do so without risking making their illness worse. “Nerd face.”

The obligations on employees (“admonishing face”) in the case of incapacity to work due to illness include the duty of disclosure, the obligation to provide proof and the obligation to promote recovery. Pursuant to Section 5 para. 1 first sentence of the German Continuation of Remuneration Act (Entgeltfortzahlungsgesetz, EFZG), the duty of disclosure is understood as the need for an employee to immediately inform their employer of their incapacity for work and the foreseen duration of that incapacity. There is no form requirement, so that this information may be provided via the telephone, email or WhatsApp. The obligation to provide proof is the obligation to provide a doctor’s certificate, in accordance with Section 5 para. 1 second sentence of the EFZG.

Requirement to provide a valid doctor’s certificate

When the employee is unable to work for more than three days due to illness, the employee has the statutory obligation to present their employer with a doctor’s certificate on the next workday at the latest (§ 5 (1) second sentence of the EFZG). The medical certificate must be issued by a licenced physician. The certificate must state the name of the employee as well as the start and foreseen duration of the incapacity to work due to illness. The certificate must also state when the doctor determined that the employee was unable to work, and whether the certificate is the first one issued by the doctor for the employee in this instance or whether it is a subsequent certificate. If even one of these requirements is missing, the doctor’s certificate will not be valid. In line with data protection rules, the certificate should not state the illness diagnosed by the doctor.

Undermining the evidential value of a doctor’s certificate

When an employee is incapacitated and unable to work due to illness, they are released from their obligation to work. In contrast, the employer must continue to pay the employee for up to six weeks; this is an exception to the general principle of “No pay without work” (Section 3. para. 1 of the EFZG). “Smiley with dollar signs in its eyes.”

The employee has the burden of proof with respect to the requirements for the continued payment of their remuneration and thus for providing evidence of their incapacity to work due to illness. Normally, this requirement will be satisfied by presentation of the doctor’s certificate. Doctor’s certificates have a very high evidential value in Germany. However, where there are serious doubts, the probative value of such certificates can be questioned. This can happen, for example, when the doctor’s certificate is issued only after talking to a physician on the telephone; when the doctor’s certificate is back-dated; when the employee announced in advance that they were going to be sick; when the employee is often sick after the end of their holidays or leave, or just before or just after the weekend or public holidays or on bridging days; or where the employee does something during their leisure time that is inconsistent with the doctor’s certificate. Undermining the doctor’s certificate leads to the employee having to prove his inability to work – without the doctor’s certificate.

The WhatsApp doctor’s certificate “surprised face,” “face with furrowed brow and open mouth”

It is no secret that it is “very easy” to convince some doctors that they need to issue a doctor’s certificate – despite the high probative value of such certificates. Will it now be even easier to get a doctor’s certificate – online – while sitting on your couch? “Exploding smiley,” “bright red face with profanity signs over the mouth.”

The aim is to simplify the obligation to provide proof – at least when you have a cold, “sneezing face” – by allowing a “tele-doctor” to issue a doctor’s certificate via WhatsApp, e.g. through “AU-Schein.de”. The employee answers questions on an online portal about the state of his or her health or illness and is then issued a – maximum three-day – doctor’s certificate. Before the doctor’s certificate is issued, the employee’s answers to the questions about the state of their health are checked, supposedly by a doctor – at least this is the legal requirement for the issue of a doctor’s certificate. On the same day, the employee will receive the doctor’s certificate via WhatsApp to show their employer and the original will arrive two days later in the post. Ultimately, the validity and probative value of an online doctor’s certificate are not yet clear. In any case, there are not yet any court decisions on this issue.

Employers, who have doubts about an employee’s illness, about the illness causing an incapacity to work and/or about the online doctor’s certificate, can call the probative value of the online doctor’s certificate into dispute, just like they can with any other doctor’s certificate. The employer could raise significant questions in relation to the probative value of the online doctor’s certificate based, for example, on the fact that such online services offer to back-date certificates by up to three days, despite the fact the courts have repeatedly held that back-dating doctor’s certificate raises doubts about an employee’s supposed inability to work. The evidentiary value of an online doctor’s certificate can also be called into question due to the fact that such online services advertise that their patients are 100% guaranteed to receive a doctor’s certificate. In practice, patients who actually visit their doctor are likely to be issued a doctor’s certificate for a longer period. However, a 100% rate of doctor’s certificates can still infringe the principles of medical ethics.

Whether the online doctor’s certificate via WhatsApp will catch on remains to be seen, as does its legal validity.

Dr Erik Schmid
(Lawyer)

Dr Michaela Felisiak
(Lawyer, LL.M.)

A similar version of this article appeared on the labour law blog of the Rehm publishing house.

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Dr Michaela Felisiak

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