Incapacity

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In German service law , incapacity for work occurs when a civil servant , soldier or judge is permanently incapable of fulfilling official duties because of his physical condition or for health reasons . If the person is in a lifelong employment relationship , they must be retired and receive provision. The legal regulations are based on the status group (civil servant, soldier, judge) and the employer (federal, state, local).

Officer

The relevant provisions for the incapacity of federal civil servants are the Federal Civil Servants Act (BBG) and the Civil Servants Act (BeamtVG). For state and municipal civil servants, Sections 26 to 29 of the Civil Service Status Act (BeamtStG) make uniform requirements that the federal states can regulate in more detail in state civil servants' and pension laws.

Federal Civil Service Act

Inability to work is a term regulated in Sections 44 to 49 BBG. According to this, incapacity to work (DU) applies to someone who is permanently incapable of fulfilling their official duties for health reasons or due to their physical condition. Likewise, anyone who has not done any service within six months over three months due to illness and there is no prospect of being able to fully restore the ability to work within a further six months can also be regarded as incapacitated ( Section 44 (1) BBG).

Another use is possible if another office, including another career, can be transferred ( Section 44 , Paragraph 2 BBG).

If there are any doubts about the incapacity to work, there is an obligation to undergo a medical examination according to the instructions of the authority and, if this is considered necessary from the medical officer point of view, to be observed ( Section 44 (6) BBG).

The possibility of limited capacity for service exists if the civil servant can still fulfill the official duties for at least half of the regular working hours while retaining the transferred office ( Section 45 BBG). If the capacity to work is limited, the civil servant receives remuneration in accordance with Section 72a of the Federal Salary Act (BBesG) and Section 6 (1) BBesG. In addition, he receives an allowance in accordance with the ordinance on the granting of an allowance for employees with limited capacity to work (BDZV) .

The limited ability to work should be waived if the civil servant can be transferred to another office or a lower-level activity. The working hours are to be shortened according to the limited capacity to work. With the approval of the official, use in an activity that does not correspond to the office is also possible.

Civil servants who have been retired due to incapacity for work are obliged to comply with a renewed appointment to civil servant status if they are to be transferred to an office of their previous or another career with at least the same final basic salary in the service area of ​​their previous employer that they meet the health requirements of the new office ( § 46 BBG).

If the superior considers the civil servant to be incapable of work based on a medical report on the state of health and if no other use is possible or if the requirements for limited capacity are not met, the employee will be retired. The procedure is regulated in § 47 BBG.

The medical examination can only be assigned to a public health officer or a doctor who is approved as an expert. The report is to be sent in a separate, sealed envelope and sealed in the personnel file ( § 48 BBG).

Officials on probation are to be retired if they have become incapacitated as a result of illness, injury or other damage that they suffered through no gross negligence while exercising or as a result of the service. They can be retired if they have become incapacitated for other reasons ( Section 49 BBG).

A civil servant on probation is dismissed from the service if the requirements for retirement specified in § 49 BBG are not met ( § 34 BBG). According to §15 BeamtVG, he can also be retired. However, this is an optional rule. There is no entitlement.

A civil servant on revocation can be dismissed at any time without observing a deadline ( Section 37 BBG).

After discharge, there is basically no entitlement to salary and benefits ( Section 39 BBG). The officer was in until 2013 statutory pension insurance mandatory nachversichert and then received the services that apply to all insured under the statutory pension insurance. Since 2013, federal civil servants have been able to apply for a retirement benefit under the Retirement Benefits Act instead . In some federal states there are comparable regulations.

Civil Service Welfare Act

Whether an official at invalidity has a right to benefits is in the Civil Service Pensions Act regulated (BeamtVG). A pension is only granted if the civil servant has served at least five years of service or has become incapacitated as a result of illness, injury or other damage which he incurred through no gross negligence while exercising or as a result of the service ( Section 4 BeamtVG) .

A lifelong civil servant who is dismissed before completing five years of service due to incapacity or reaching the age limit in accordance with Section 32 (1) No. 2 BBG can be granted a maintenance contribution up to the amount of the pension. The same applies to a civil servant on probation who has been dismissed due to incapacity or due to reaching the age limit ( Section 15 BeamtVG). If the civil servant has become incapacitated and retired as a result of the accident at work , he receives an accident pension ( Section 36 (1), BeamtVG).

The accident retirement salary is at least sixty-six two-thirds of the pensionable salary and may not exceed seventy-five percent of the pensionable salary ( Section 36 (3) BeamtVG). An increased accident retirement salary according to § 37 BeamtVG is available to people with a so-called qualified occupational accident in which the civil servant exposed himself to a mortal danger while on duty.

soldiers

The Soldiers Act (SG) contains the following regulations: A professional soldier must be retired if he is permanently unable to fulfill his official duties due to his physical condition or health reasons. He can also be regarded as incapacitated if the restoration of his ability to fulfill his official duties cannot be expected within one year ( Section 44 (3) SG). The incapacity to work is determined ex officio on the basis of the opinion of a doctor from the Bundeswehr or upon application ( Section 44 (4) SG). A soldier is to be released if he is incapable of working. Section 44 Paragraph 3 Clause 2 and Paragraph 4 apply accordingly. ( Section 55 (2) SG).

In 2009, in order to create a modern and transparent civil service, salary and pension law, the provisions on incapacity were changed with the Service Law Reform Act. One of the measures to increase and promote the performance-relatedness of the service law and a more flexible deployment of personnel was the strengthening of the principle “rehabilitation before care” to avoid early retirement. Priority is given to use for another job and the obligation to participate in qualification measures to acquire a new skill.

In 2007, 431 of 5,120 benefits were received due to incapacity. This corresponds to a share of 8.4%. The aim was to further reduce the number of benefits due to incapacity for work in the federal administration and thus to better use human resources. The core of the changes was the introduction of a comprehensive inspection obligation for the superior to determine whether the officer could be used again.

Judge

Federal judges and judges of the federal states for life or for a limited period of time can only be retired on the basis of a legally binding judicial decision due to incapacity without their written consent ( Section 34 (1) sentence 1 DRiG ). In the case of federal judges, the federal service court makes the final decision ( Section 62 (1) No. 3 lit. d DRiG ).

Disability insurance

Civil servants, judges or soldiers can also take out private insurance against incapacity for work. Civil servants who want to insure themselves against the risk of incapacity are faced with the problem of finding a suitable insurance solution: Not every case of incapacity is to be equated with incapacity . Usually, according to the insurance conditions of an occupational disability insurance , one is unable to work for 6 months due to illness, physical injury or loss of strength, at least 50% of which can be carried out on the basis of his training and experience and that of his previous work Position in life. Since the transfer / discharge into retirement due to incapacity does not necessarily mean that this criterion is met, there is a risk for the civil servant that he is deemed incapacitated by his employer, is not incapacitated according to the insurance conditions and consequently does not receive any insurance benefits.

In practice, however, it is more often the case that the civil servant is unable to work, but not yet unable to work. In theory, it is even impossible for the civil servant to be incapacitated but not incapacitated. The performance trigger is essentially the same. DU is someone who was DU within 6 months and is unlikely to be fully able to work again in the next 6 months. It is similar in BU insurance. You either have to have been a BU for 6 months or be able to prove that the officer will be a BU for the next 6 months. Obviously, it is easier to prove that you have already been unable to work for 6 months. That is sufficient with the BU insurance.

In order to be unable to work, it must be proven that you will be YOU for the next 6 months. This is almost never possible, especially with mental illnesses. The civil servant could have been DU for years, but would not be retired because it cannot be proven that the condition will last.

The only reason the civil servant is retired here is because of the employer's financial interests. The civil servant receives full pay until it is retired.

For DU insurance, however, this means that the DU clause is not as important as intermediaries and insurers like to claim. An occupational disability insurance is sufficient. A DU clause makes the application easier. Provided it is a "genuine DU clause", it represents an irrefutable presumption.

Civil servants should therefore ensure that they opt for disability insurance that includes what is known as a real and full disability clause. It covers the risk of general incapacity. A disability clause is regarded as "genuine" if it does not give the insurer its own right to review. Nowadays these clauses exist with the caveat that the cause of the retirement is medical. The insurer can therefore check which illness leads to DU. That arose in the mass layoffs in the context of the privatization of the post office. A "spurious DU clause" is e.g. For example: "Benefit is given to anyone who is incapacitated and who is retired for medical reasons alone." The difference is made by the "and". This means that the trigger is split in two. The retirement transfer is not sufficient proof. You have to prove the incapacity to the insurer in another way. Usually according to §26 Civil Service Status Act, as most civil servants are state civil servants.

The addition “complete” applies if the clause does not apply to a specific group of civil servants, e.g. B. is only related to civil servants for life. There are currently only 2 providers of an incomplete clause on the market. This is only done when the civil servant is retired and not when he is dismissed. This excludes protection for civil servants on revocation and probation.

The limited capacity to serve, as z. B. is regulated for state officials in §27 BeamtStG, usually does not require any separate protection. If the civil servant has to work part-time for health reasons, he not only receives the proportional salary, but also compensation, which varies depending on the federal state. In Bavaria the compensation is 50% of the difference between the old and new pay, in Hesse it is 10% of the original pay. Those who do not want to or cannot bear this financial loss themselves can also conclude a so-called partial DU clause. Due to the level of financial risk and the low probability, this clause is only considered useful by insurers who offer it.

Depending on the insurer, other special clauses can be included for hazardous activities. This mostly affects the area of ​​the law enforcement service such as police incapacity, fire service incapacity and temporary soldiers .

However, these clauses are usually superfluous. A special incapacity for work exists if the civil servant no longer meets the special requirements for his service. An occupational disability insurance not only pays out if you can only work halfway in terms of time, but also in terms of quality. It has already been judged that a BU insurer has to pay if a meaningful work result is no longer possible, even if the claimant could still do more than half of the working hours. A patrol officer who, for psychological or other medical reasons, is no longer able to use his weapon can work 99% of the time without any problems. Very few police officers have to shoot when they are on duty. But it wouldn't make sense if he couldn't shoot in an emergency. Therefore, a meaningful work result is not possible and he would be 100% disabled. A special clause makes it easier to provide evidence, but does not create your own access to the pension.

Rather, it is the case that the benefit from the BU insurance is equivalent to an unlimited acknowledgment, while the benefit from the special DU clause is usually limited.

See also

Web links

Individual evidence

  1. ^ Draft of a law for the reorganization and modernization of the Federal Service Law (Service Law Reform Act - DNeuG)
  2. ↑ New version of the provisions on incapacity for work in Sections 44 to 49 BBG (RdSchr. D. BMI of March 9, 2009 - D 1 - 210 142/18 -)
  3. ↑ worksurance: Disability insurance for civil servants in 2020. In: Worksurance - Portal for worker protection. Accessed April 10, 2020 (German).
  4. ↑ worksurance: Disability insurance for civil servants in 2020. In: Worksurance - Portal for worker protection. Accessed April 10, 2020 (German).