When dealing with mental illness at work, managers are often faced with challenging situations in which they have to find a balance between the needs of the company and their duty of care for their employees.
Many people suffering from mental illness fear that their employer will find out about their illness. Particularly in the case of prolonged absences, they fear that their line manager will find out the reason for their absence. However, this concern is unfounded, especially with regard to a certificate of incapacity for work.
When a certificate of incapacity for work (AU) is issued, the health insurance company receives a code from the doctor that reveals the nature of the illness. This code, known as the ICD-10 code, provides a standardised classification for medical diagnoses, defined by the World Health Organisation. However, this code is not sent with the electronic transmission of the sick note to the employer. This means that the line manager receives no information about why an employee is on sick leave. Even if an employee receives sick pay after six weeks, the health insurance fund only informs the employer about the end of the continued payment of remuneration without passing on any details about the illness.
Sick pay also applies in the event of repeated absences on individual days. This applies if employees are repeatedly absent due to the same illness within a twelve-month period. In such situations, sick pay is paid from the 42nd calendar day, i.e. also after six weeks, on all days of incapacity for work, while the regular salary is paid on the days when the employee is able to work.
The employee does not have to fear any consequences from the health insurance fund for the time being. The entitlement to sickness benefit extends over three years and totals up to 78 weeks. Another illness does not extend this period.
If the employer has doubts that his employee is actually only ill on individual days, he can use his right of review. The health insurance company's medical service enables the employer to have a new, supposedly neutral assessment carried out by another doctor. However, this doctor will also only review the previous decision without disclosing any information about the nature of the illness.
If an employee is repeatedly absent from work for several days, the supervisor can adjust the legal regulation of the certificate of incapacity for work (AU) after the third day. If the employer requests this, a sick note must be submitted on the first day. This decision does not have to be co-determined by the works council for individual persons, and the employee must fulfil his obligation to submit the certificate. There is no right of veto at this point.
It is important to emphasise that the employee is not on leave in the event of illness. The trusting relationship between employee and employer plays a decisive role when it comes to the appropriate handling of holiday requests submitted at short notice. Although the boss's understanding is commendable, it leads to a legally incorrect decision.
If the employer is aware that leave is being taken on a day on which the employee is unfit for work in order to circumvent the sick note, the leave request cannot be granted. From a legal point of view, in such a situation the requirement for approval of the leave is not met, as there is no recreational value. In this case, the line manager would be in breach of their duty of care.
However, if the leave is requested properly and in good time, the line manager has no influence on the decision. With regard to the duty of care, it is also advisable to seek a dialogue with the employee and explain that the correct procedure on days of incapacity for work, even during leave, is to report sick.
Ultimately, both employers and employees benefit from clear agreements regarding holidays. This leads to less pressure in the office and promotes a positive working environment.