German employment law will introduce numerous innovations and planned changes in 2023 that HR managers should be aware of.

New legislation enters into force

A number of new regulations have been in force since 1 January 2023. For example, employees with statutory health insurance will no longer have to submit a certificate of incapacity for work to their employer. The so-called “yellow slip” in paper form will no longer be required from that date. Employers are now obliged to electronically retrieve data on their employees’ incapacity to work with statutory insurance from the health insurance funds (electronic certificate of incapacity to work – eAU). Employers can only request the incapacity to work certificates (initial and follow-up certificates) individually for the respective employee. Regular or blanket retrieval of eAU data by employers is not permitted. Privately insured persons are not affected by the regulation.

The German Supply Chain Due Diligence Act (LkSG) now obliges companies above a certain size to check the standards of their suppliers and subcontractors. Employers will have to pay more attention to transnational minimum standards with regard to working conditions, among other things. Companies should bear in mind that co-determination rights of the works council can be triggered when fulfilling the legally prescribed due diligence obligations. The requirement at European level, the “Corporate Sustainability Due Diligence Directive” (COM(2022) 71 final), will probably be adopted by the EU in May 2023. As these rules are expected to be much stricter than the German law, Germany will probably have to amend and improve the LkSG. In the sustainable positioning of companies, HR managers are likely to assume a more responsible role in the company. For example, stakeholders are increasingly asking how the remuneration strategies of the company impact the sustainable performance and which employee benefits, such as cycle schemes or the provision of a company car, serve the sustainability of the company.

The parameters for calculating the levels in the social insurance system were adjusted on 1 January 2023. You can find the current calculation parameters here. In addition, the home office allowance was increased to up to € 1,260 so that employees can claim 210 instead of 120 home office days in their income tax return.

The Sars-Cov-2 Occupational Health and Safety Ordinance will be repealed on 2 February 2023. The rules on occupational hygiene precautions were extended last year and should apply until 7 April 2023.

Outlook

The new Whistleblower Protection Act was passed by the German Bundestag on 16 December 2022 and is expected to come into force in April 2023 after approval by the Bundesrat. The law obliges companies to set up and operate an internal reporting system, whereby anonymous disclosures must now also be followed up. Workers who report wrongdoing in companies will be better protected from reprisals through a shift in the burden of proof: The presumption is now that any detriment is as a result of the disclosure, which may result in more claims for damages by employees.

Following the ruling of the Federal Labour Court, employers are obliged to record the working hours of their employees. The Federal Ministry of Labour has published FAQs (available in German only). A draft law is expected in the first quarter of 2023 that will regulate previously unresolved questions by amending the Working Time Act.

The Federal Labour Court has further clarified that employers are generally obliged to ask their employees to claim their annual leave, as otherwise the statutory limitation period of three years for claiming any outstanding leave does not apply. Employers are therefore very likely to have to deal with increased claims by employees for holiday days thought to have lapsed. This may even affect employees who have already left the company.

A proposal for change of the Skilled Workers Immigration Act, by the Federal Government, will effectively, make it easier for foreign skilled workers to enter the German labour market. The “Cornerstones for skilled labour immigration from third countries” of 30 November 2022 provides, among other things, that skilled workers with professional experience will in future be allowed to work even without a qualification recognised in Germany. Furthermore, third-country nationals who meet certain criteria are to be allowed to enter Germany with an opportunity card to look for a job. A bill is to be introduced in the Bundestag in early 2023. In addition, the Highly Qualified Workers Directive (RL(EU) 2021/1883) must be transposed into national law by Member States by 18 November 2023 at the latest.

With a draft law on the ratification of the International Labour Organisation’s “Convention No. 190” on the Elimination of Violence and Harassment of 2019, the Federal Government is implementing a project arising out of the coalition agreement. The aim of the Convention is to ensure easy access to appropriate and effective remedies in cases of workplace violence and harassment, as well as to safe, fair and effective reporting and dispute resolution mechanisms and procedures. So far it is unclear whether and, if so, which legal adjustments, for example to the General Equal Treatment Act (AGG), will be made as part of the ratification of the Convention.

On 1 December 2022, the German legislature passed the “Act on Work-Life Balance for Parents and Family Carers”, thereby transposing the EU Compatibility Directive (RL (EU) 2019/1158) into German law. Employers who refuse to allow parents and carers to reduce their working hours will have to justify their refusal in future. In contrast to larger companies, there is still no entitlement to caregiver leave in small companies (the limit for this is 15 employees) or family caregiver leave (the limit for this is 25 employees). Nevertheless, even in small companies, employees can apply to arrange care or family care leave with their employer. Employers must respond to the application within four weeks and give reasons if they refuse. The much discussed two-week “paternity leave” has not been implemented.

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