incapacity for work

from Wikipedia, the free encyclopedia

Inability to work ( sick leave in Austria ) is an indefinite legal term in labor and social law , according to which an employee can no longer perform his last work tasks due to illness or only at the risk of the illness worsening. The opposite is the ability to work . Inability to work is not synonymous with inability to work.

General

The disability exempting the working people of the employment contract provided basic work requirement . The inability to work presupposes an illness, which can be traced back to medical as well as psychological or mental-mental causes. In March 1958, the Federal Court of Justice (BGH) defined the disease as "any disturbance of the normal condition or normal activity of the body that can be cured, that is, eliminated or alleviated." According to the opinion of the Federal Social Court (BSG) from October 1972, in the sick - and accident insurance under illness means “an irregular state of body or mind that requires medical treatment and / or results in incapacity for work”. As a result, the medical concept of illness is not congruent with the social law.

The illness is causally related to the inability to work, which under labor law prevents the employee from performing the work stipulated in the employment contract. Because of the continued payment of wages in the event of illness in some countries , the employer has an interest in the incapacity for work, which is subjectively felt by the employee, being objectively confirmed and certified by doctors . For the Federal Labor Court (BAG), it cannot be ruled out that the employee describes subjective complaints in the case of certain clinical pictures , which although cannot be objectified by examinations, could nevertheless cause the doctor to certify an incapacity for work. "It should therefore not be dismissed out of hand that medical certificates certifying incapacity for work are incorrectly or improperly drawn up or obtained, so that absolute probative value can not be attached to them on the basis of the applicable German regulations ".

causes

Disability is a general disease , occupational disease , accident ( occupational accidents , household accidents , sports accidents ), Kur founded, or the protection of health. Inability to work due to illness means that the employee has to stay away from the company so that any risk of infection is excluded and the health of the other employees is protected. The enforcement of the incapacity for work is also part of the employer's duty of care .

The most common causes of incapacity for work among those with statutory health insurance (as of 2009) are diseases of the respiratory tract (24.7% of cases), followed by diseases of the muscles or the skeleton (16.4%), the digestive organs (11.1%), Inability to work due to injuries (8.7%) and mental illness (4.4%). According to another source, most of the days of incapacity for work are due to musculoskeletal disorders (22.9% of the days of incapacity for work), followed by acute injuries (11.8%), respiratory diseases (11.4%) and mental illnesses (10, 1 %). Whether, for how long and because of which illness an employee is unable to work is influenced by the factors age, gender and occupation. The downtime for employees in the service sector as well as banks and insurance companies is significantly lower than for employees who work in jobs with high physical workloads , for example in supply and disposal and in industrial foundries, but also for bus and tram drivers or geriatric nurses .

Since 1991 the number of sick days due to mental disorders has increased by about 33%. This trend towards more mental illnesses can be observed in the incapacity statistics since its introduction in 1976 (status: 2006).

Legal issues

General

An inability to work does not require a complete inability to act ( bedridden ), but it is sufficient if it represents an obstacle to the future provision of services. In doing so, it is impossible for the employee to carry out the tasks last performed by him; whether he could still do lighter activities does not matter. Even with a partially reduced ability to work, the employee is considered to be unable to work; there is no partial incapacity. The employee is therefore not prevented from doing housework, family work , gardening or recreational sports in his free time during his incapacity for work . However, prohibited all that the recovery affected - even the jobbing for another employer unless a convalescence misconduct herein to behold. However, other work during the sick leave can be an indication that the employee is sick but not unable to work.

Reporting requirement

In the event of illness , the employee must immediately notify the employer of his incapacity for work, i.e. without culpable hesitation ( Section 121 BGB ) and inform him of the expected duration. If the incapacity for work lasts longer than three calendar days , it must be proven in accordance with Section 5 (1) sentence 2 EFZG by submitting a corresponding medical certificate of incapacity for work (" attest "). For those with statutory health insurance , this must also be proven to the health insurance company . According to the case law of the Federal Social Court of October 2018, the duty is not incumbent on the doctor who issues the certificate, but on the sick employee , unless otherwise agreed between the patient and the doctor. The certificate of incapacity for work must be received by the health insurance company within one week in accordance with Section 49 (1) No. 5 SGB V. If the reporting day is free, submission is permitted on the next working day ( Section 193 BGB). In the strict sense of the word, incapacity for work is present when the employee presents the employer with a “certificate” from a doctor. The employer is entitled to request the submission of the medical certificate earlier. He is even allowed to do this from a single employee - for example because he is suspected of “ turning blue” .

Even after the six-week pay period has expired, employees are obliged to provide evidence of their incapacity for work by submitting a medical certificate of incapacity for work. BAG: "There is a lot to suggest that the obligations under Section 5 (1) EFZG also affect an employee during periods for which he or she can no longer claim continued remuneration according to Section 3 (1) EFZG. This applies at least to an employment relationship that has not been terminated , which in the case of ordinary termination also includes times before the termination date ".

Control by the employer

Since doctors cannot differentiate between “real” and “simulated” illnesses for every clinical picture described by the patient, and in order to take action against “certificates of convenience”, doubts about the evidential value of a certificate may arise with the employer. Here the employer can fall back on the support of the health insurance companies or the medical officer .

The medical certificate confirming the incapacity for work only has the meaning of a medical report for the decision on the entitlement to continued remuneration. In accordance with Section 275 (1) No. 3b SGB ​​V , the health insurance companies are obliged to obtain an expert opinion from the medical service of the health insurance company in the event of incapacity for work to remove any doubts about the incapacity to work . According to Section 275 (1a) SGB V, these doubts about incapacity for work are to be assumed in particular in cases in which employees are conspicuously often or conspicuously often only unable to work for a short period of time or where the incapacity for work often begins on a working day at the beginning or at the end of a week or the incapacity for work has been determined by a doctor who has become conspicuous through the frequency of the incapacity certificates issued by him. The examination must be carried out immediately after the medical declaration of incapacity for work has been submitted. The employer can demand that the health insurance company obtain an expert opinion from the medical service to check the incapacity for work. The health insurance company may refrain from commissioning the medical service if the medical documents available to the health insurance company clearly show the medical conditions for incapacity for work.

The presumed use of the incapacity for work for private purposes (increased leisure time ) can be assumed in accordance with Section 275 (1a) SGB V if the absence rate of a particular employee is over 50% of the rate of colleagues within the same department ; then one can always assume “conspicuous behavior”. This attitude of law and jurisprudence, which is critical of medical certificates, can not completely exclude absenteeism or absenteeism , but it can largely reduce it.

Legal consequences

If an employee is prevented from performing his work due to an inability to work due to illness, through no fault of his own , he is entitled to continued remuneration in the event of illness by the employer for the period of incapacity for work up to a period of six weeks ( Section 3 (1) EFZG).

If the employee does not start work and he cannot provide any valid reasons for this, there is a disruption in performance . Missed working hours due to unjustified absenteeism usually lead to partial impossibility of performance , which according to Section 313 (1) BGB entitles the employer to withhold or reclaim the wages corresponding to the absenteeism . There is also the risk of a warning or even refusal to work , which can entitle the employer to terminate the employment contract .

Inability to work in social law

Unemployed people are unable to work if, due to illness, they are no longer able to do light work for the amount of time for which they have made themselves available at the employment agency. It is irrelevant what activity the insured was doing before becoming unemployed (Section 2 (3) sentence 1 of the work incapacity guidelines). Employable beneficiaries who have applied for or receive benefits to secure their livelihood according to SGB II ( basic security for jobseekers - "Hartz IV") are unable to work if they are unable to work at least three hours a day due to illness or are involved in an integration measure to participate (Section 2, Paragraph 3a, Guidelines for Incapacity for Work).

Incapacity benefits

According to the Remuneration Act , employees are entitled to continued remuneration for up to six weeks if they are unable to work through no fault of their own. This does not yet apply during the first four weeks of the employment relationship. Employees who have marginal employment are also entitled to continued pay . There is no entitlement to continued remuneration in the event of incapacity for work as a result of tattoos , piercings or cosmetic operations that are not medically indicated , because the employer only has to bear the normal risk of illness for the employee.

If continued remuneration is not paid or if it has expired, employees with statutory health insurance are entitled to sickness benefits from the health insurance company for a maximum of 78 weeks (for the same illness within a total of three years). As long as the insured employee receives continued payment from the employer, the entitlement to sickness benefits is suspended, with the result that after about six weeks of continued payment, he can only claim sickness benefits for up to 72 weeks.

Is the inability to work a result of industrial accident or occupational disease , which takes the place of sick pay injury benefit by the wearer of accident insurance, for example, the respective BG . Minor employees who do not receive sick pay can also be entitled to injury benefit, because as employees they are insured against accidents, but not insured.

On the basis of a collective agreement (for example in the public service according to Section 22 TVöD ), employees can be entitled to a subsidy for sickness or injury benefits from their employer. This is often staggered according to the length of employment.

Alternatively, a private daily sickness allowance or an incapacity for work clause can be agreed in the private disability insurance (e.g. for privately insured persons who are not entitled to statutory sickness benefits). Such benefits are only paid in the event of total incapacity for work.

Inability to work while on vacation or abroad

The obligation to notify also applies in the event of incapacity to work on vacation . Due to the delivery time, the certificate will not be available within four days. Individual agreements are therefore useful, e.g. B. Transmission by fax from the hotel or handover immediately after returning from vacation. Foreign certificates of incapacity for work must meet certain requirements. The vacation days are not automatically extended by the sick leave; rather, when the employee is able to work again, he or she has to start work again at the scheduled time. The days of proven incapacity for work may not be counted towards the vacation.

Integration after long-term illness

In the event of a longer illness, a work trial phase may be necessary. With the consent of the sick person, the health insurance company and the employer, the employee is introduced to the stresses of his or her workplace gently but continuously via the "gradual reintegration " route . Meanwhile, the person concerned is still considered to be unable to work (and usually continues to receive sickness benefit). This procedure is often preceded by discussions with the company doctor, in connection with which it is also checked whether and to what extent z. B. technical aids in the workplace are necessary. According to Section 167, Paragraph 2, Clause 1 of Book IX of the Social Code, the employer must carry out what is known as company integration management within one year in the event of uninterrupted or repeated incapacity for work of more than six weeks .

International

Anyone who cannot work because of illness or an accident can also go on sick leave in Austria and usually receive sick pay. Here, too, the treating doctor decides whether you are unable to work due to an illness. During sick leave, the employee is not allowed to do anything that could delay recovery. In the first 5 years, workers are entitled to 6 weeks full and 4 weeks half pay per working year. In addition, workers are entitled to a maximum of 8 weeks (or 10 weeks after 15 years of work) full pay for each work accident. In the first 5 years, employees are entitled to 6 weeks full and 4 weeks half pay. If employees fall ill again within 6 months, they will receive another 50% continued payment for 6 weeks and 25% continued payment for 4 weeks. In July 2018, workers and salaried employees were equated in terms of the duration of sick leave and the reasons for the employee's inability to work.

In Switzerland , the law defines inability to work as “the full or partial inability to perform reasonable work in the previous occupation or area of ​​responsibility due to impairment of physical, mental or psychological health. In the case of a long duration, reasonable activity in another profession or area of ​​responsibility is also taken into account ”(Art. 6 Federal Act on the General Part of Social Insurance Law ). Depending on the terms of the employment contract, the employee usually only has to submit a doctor's certificate from the third working day, sometimes from the first day. In the case of partial incapacity for work , the doctor's certificate must provide information on how many hours the employee is allowed to work. Termination during the incapacity for work is excluded for 30 days in the first year of service, for 90 days from the second up to and including the fifth year of service and for 180 days from the sixth year of service, as well as during pregnancy and in the 16 weeks after the birth of an employee.

In Sweden there since 1990 part of sick leave, after which they also led Denmark , Norway and Finland one.

statistics

In Germany, around 40 million certificates of incapacity for work are issued each year; for three percent, the medical service of the health insurance companies is called in to give a socio-medical opinion.

In Germany, cross-insurance information on sick leave is only available in the form of statistics from the Federal Ministry of Health (BMG). These statistics are based on key date values ​​for sick leave on the first of each month. The daily sickness rate in Germany is between 3% and 6.5%. The difference within each week is one to two percentage points: it is particularly low on Saturdays / Sundays / public holidays and increases within a week with every other working day. Within a year, the difference between the weekly highs on the last working day of the respective week is two percentage points.

The Techniker Krankenkasse determined between 11 and 16 days of incapacity for work per insurance year in its portfolio in the years 2000 to 2017. Women are on average 2 to 3 days more incapacitated per year than men. Between the federal states with the fewest days of incapacity for work per insured person, Baden-Württemberg and Bavaria, and those with the most, Brandenburg, Saxony-Anhalt and Mecklenburg-Western Pomerania, there are more than 6 AU days / year / insured person.

Two out of three incapacities (67%) last up to 7 days, only one in 20 incapacity for work (5%) lasts longer than 6 weeks, which accounts for almost half of all incapacity days.

Persons under 40 years of age have an average of 10 AU days / year, with age the average number of AU days / year increases to over 30 AU days / year for persons over 60 years of age.

The average weekly sickness rate from colds in the years 2000 to 2017 was 0.2% and one to two annual peaks of 0.7 to 2.1%, which correlate with the flu waves. Colds account for around one sick leave day per insured year.

In 2016, there was an average of 19.4 days of incapacity per AOK member in Germany , the highest level ever. Most sick days with 31.8 were in supply / disposal , followed by 30.4 ( industrial foundry ), 29.3 ( road maintenance ), 27.9 ( bus and tram driver ), 22.4 ( public administration , Bundeswehr and social security ) or 22.3 days ( metal production ). The lowest absenteeism was recorded by university lecturers and research at 4.4 days , followed by 7.3 ( doctors ), 9.4 ( managing directors and board members ), 12.4 ( information and communication ) and 13.8 ( finance and insurance) ). Federal officials were above average (20.8 days). In 2017, 21.8% of all incapacity for work at DAK-Gesundheit related to the musculoskeletal system and 10.4% to infections.

Internationally, Mexico leads the world with 27.6 days. The OECD registered the following days of absence in Europe in 2014: Sweden 19.0, Germany 18.3, Norway 16.2, Poland 14.2, Luxembourg 11.8 (this is also the average of the EU member states ), Netherlands 10, 0, Austria 9.9, Switzerland 8.8 or France 8.3 days of absence.

See also

literature

  • Bernhard van Treeck & Sabine Grotkamp (2008): Mental and psychosomatic illnesses: When is a patient unable to work? Neurotransmitters 10, 12-17

Web links

Wiktionary: Incapacity for work  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Vienna Chamber of Labor on sick leave ( Memento of the original from February 21, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / wien.arbeiterkammer.at
  2. ^ BGH, judgment of March 21, 1958, Az .: 2 StR 393/57
  3. ↑ BSGE 35, 10 , 12 f.
  4. ↑ BAG, judgment of April 27, 1994, Az .: 5 AZR 747/93 (A)
  5. ↑ according to statistics published by the National Association of Statutory Health Insurance Physicians ( Memento of the original from August 20, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.kbv.de
  6. ↑ According to an analysis by the Scientific Institute of the General Local Health Insurance Fund (WIdO), which evaluated the data of 11 million AOK-insured employees who were employed in more than 1.3 million companies in 2012. See press release ( memento of the original from July 28, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 878 kB) @1@ 2Template: Webachiv / IABot / www.wido.de
  7. ↑ According to the analysis by WIdO, see previous footnote
  8. ↑ Quoted from "More days off due to psychological suffering", Süddeutsche Zeitung , January 3, 2007, p. 20
  9. ↑ BAG, judgment of January 29, 1992, Az .: 5 AZR 37/91
  10. ^ BAG, judgment of August 26, 1993, Az .: 2 AZR 154/93
  11. ↑ Federal Social Court , judgment of October 25, 2018 Az. B 3 KR 23/17 R. In: www.jurion.de . Retrieved June 23, 2019 . Marg. 32.
  12. ↑ BAG, judgment of November 14, 2012 - 5 AZR 886/11 - openJur. Retrieved June 21, 2019 .
  13. ↑ BAG, judgment of July 11, 2012 - 2 AZR 241/12 - juris Rn. 29 = NZA 2013, 1259
  14. ↑ Achim Lepke, breaches of duty by the employee in the event of illness as a reason for termination , in: NZA 1995, p. 1089
  15. ↑ Ulrich Huber, Performance Disorders , Volume 1, 1999, p. 164
  16. ↑ Disability Guidelines
  17. ↑ Disability Guidelines ; PDF; 127 kB
  18. ↑ Manfred Löwisch / Alexander Beck, No continued payment for cosmetic surgery , in: Betriebsberater, 2007, pp. 1960–1961
  19. ↑ For those with statutory health insurance, the health insurance company can restrict or refuse benefits in accordance with Section 52 (2) SGB ​​V in these cases .
  20. ↑ worksurance: Section: Arbeistunfähigkeits clause. In: Worksurance - Portal for worker security. Retrieved on May 25, 2020 (German).
  21. ↑ Daily sickness allowance only in the event of total incapacity to work onwirtschaft.t-online.de
  22. ↑ MDK , last accessed on April 14, 2020
  23. ↑ a b c d e Health Report 2018 Incapacity for work - Techniker Krankenkasse, Market and Customer Management division, Health Promotion Team, PDF tk.de/gesundheitsreport
  24. ↑ Bernhard Badura / Antje Ducki / Helmut Schröder / Joachim Klose / Markus Meyer (eds.), Absence Report: Data and Analyzes , 2017, p. 303
  25. ↑ FOCUS MONEY ONLINE from December 28, 2017, warehouse workers, employees, civil servants: This is how often employees in Germany are sick