Littler Global Guide - Germany - Q4 2022

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Introduction of the Electronic Certificate of Incapacity for Work

New Legislation Enacted

Author: Johanna Müller-Foell, Associate – vangard | Littler

The electronic certificate of incapacity for work (eAU) has been introduced. Effective January 1, 2023, according to the revised version of Section 5 of the Continuation of Remuneration Act, employees with statutory health insurance are no longer required to submit a paper certificate of incapacity for work to their employer. They will only have to establish the existence and expected duration of the incapacity to work with a doctor and have a medical certificate handed over for evidentiary purposes, e.g., in the event of a failed electronic transmission. This does not apply to incapacity for work abroad or to privately insured employees and marginally employed persons in private households. Under these circumstances, employees are still required to submit a paper certificate of incapacity for work to their employer.

After the statutorily insured employee has notified the employer of the inability to work, employers must electronically retrieve the certificate of incapacity for work from the employee’s health insurance.

Easier Access to Short-Time Allowance Extended Again

New Legislation Enacted

Author: Lucas A. Gropengiesser, Associate – vangard | Littler

Short-time work is designed to offset some of the temporary earning losses and prevent job losses by enabling companies to continue to employ their employees even in the event of a loss of orders by using short-time work. If the legal requirements are fulfilled, the Federal Employment Agency pays the short-time work allowance to compensate in part for the loss of wages caused by a lack of work for a temporary period.

Until the end of June 2023, easier access to short-time allowance will remain in effect. The German Cabinet extended easier access to short-time work allowance introduced during the coronavirus pandemic for another six months, enabling companies to apply for short-time work as soon as 10% of their workforce is off work (instead of the prior threshold of one third). Furthermore, the accrual of minus hours is waived, and temporary workers remain eligible for short-time allowance.

Additional Details on the Employer’s Obligation to Comprehensively Record Working Hours

Precedential Decision by Judiciary or Regulatory Agency

Author: Dr. Sabine Vianden, Associate – vangard | Littler

With its decision of September 13, 2022 (1 ABR 22/21), the Federal Labor Court already ruled that employers are obliged to record all working hours of employees. The reasons of the decision were published in December and provide more details on this obligation. Most importantly, as follows: Time recording must cover the start and end of working hours, break times and overtime. A specific form of time recording is not specified: Working time recording can be done electronically, but also manually (depending on the individual circumstances in the operation). Employers can delegate the duty to record working time to employees. Employers must ensure, however, that the system is actually and correctly applied (for example through regular spot checks). The obligation does not apply to the working time of executive employees.

The Federal Ministry of Labor and Social Affairs has announced its intention to propose the design of working time recording in the Working Time Act during the first quarter of 2023. With this in mind, employers should review existing time tracking and attendance systems or begin preparing to implement them.

Notification Obligation on Forfeiture of Statutory Vacation Entitlements

Precedential Decision by Judiciary or Regulatory Agency

Author: Dr. Sabine Vianden, Associate – vangard | Littler

With its decision of December 20, 2022 (9 AZR 245/19), the Federal Labor Court extended its case law on the forfeiture of statutory vacation entitlements. In accordance with European Union law, vacation entitlements only expire at the end of the calendar year or the permissible carryover period if the employer has explicitly informed employees about the forfeiture and asked them to take the vacation in time. Now, the Federal Labor Court has ruled that the notification obligation also applies in certain cases of illness.

Generally, vacation entitlements expire if the employee was prevented from taking their vacation for health reasons from the beginning of the vacation year until March 31 of the second calendar year following the vacation year. However, if the employee actually worked within the vacation year before being sick, the forfeiture of the vacation entitlement requires that the employer has enabled the employee to actually take their vacation in good time before the incapacity to work occurred (by notifying the employee accordingly). One way to comply with this obligation is for all employees to be informed, at regular intervals, of their remaining vacation entitlements and that they will expire if they are not taken by the end of the calendar year or the carryover period.

ECJ on Deviation of Equal Treatment Principle for Temporary Work Agencies

Precedential Decision by Judiciary or Regulatory Agency

Author: Dagmar Lessnau, LL.M., Partner – vangard | Littler

In December, the European Court of Justice ruled that temporary agencies can only deviate from the principle of equal treatment by applying working conditions governed by collective agreements that ensure “overall protection of temporary agency workers” (ref. no. C-311/21).

Generally, a collective agreement must provide for compensatory benefits if temporary agency workers receive a lower remuneration than comparable workers of the user undertaking. It is up to the parties concluding collective agreements for the temporary agency industry to ensure compliance with the “overall protection of temporary agency workers” standard. In the event that a temporary agency worker files a payment claim, German labor courts will be asked to decide whether an applicable collective agreement grants such overall protection of temporary agency workers in each individual case by comparing the work conditions at the sector level.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.