A Hamburg start-up has been offering sick leave via the WhatsApp messenger service for a year. The processing is carried out by “Dr. “Ansay AU-Schein GmbH”.

Here, a sick note for the respective employer is created online by the user and confirmed via WhatsApp. Users fill out a questionnaire online with their symptoms. After paying 14 euros, the sick note will be sent as a PDF file with the AU certificate (certificate of incapacity for work) via WhatsApp.

This type of sick note can only be used for “mild” symptoms such as colds, bladder infections, or stomach flu. The advantage for users would be that they would not have to drag themselves to a doctor's office if they were sick.

Sample process is initiated

This model could soon be a thing of the past. The German Center for Combating Unfair Competition would like to file a lawsuit against the Hamburg start-up. A lawsuit is said to have already been filed, as reported by heise online.

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The reasons for this are that, in the opinion of the competition center, the start-up would violate the Medicines Advertising Act.
According to many lawyers, the AU certificates ordered are not valid under labor law, so the advertising on the website is nothing less than misleading. Christiane Köber, member of the management board of the Competition Center, comments: “It would be important for employers to know whether such a certificate of incapacity for work has the necessary evidentiary value.”

Concerns from medical associations about data protection

The medical associations of Hamburg and Schleswig-Holstein also expressed concerns about data protection at au-schein.de at the beginning of the year: “In the opinion of the medical profession, a responsible and careful transfer of the confidential doctor-patient relationship into the digital age looks different .” In addition, users were warned that sick notes via WhatsApp could not be accepted by the employer.
The operator of au-schein.de Dr. jur. Can Ansay does not understand these concerns: “We issue legally valid certificates with the original signature of a doctor,” he told Spiegel Online. These certificates would not differ from those that users would receive from their actual doctor. The advantage for users would be that they would not have to drag themselves to a doctor's office if they were sick.

Over 20,000 sick notes have already been issued

The service started at the end of 2018. Since then, over 20,000 sick notes have been issued using it, the start-up announces on its website.

This is what the competition center says in a press release dated November 18, 2019

“Order” a sick note online? – Competition center initiates test case against providers of certificates of incapacity for work

“Sick leave without a doctor’s visit” is how a software company from northern Germany advertises its business model. In fact, the customer can click on predefined and selectable symptoms on the company's homepage, answer a few questions about their state of health and determine the duration of the sick leave at their own discretion ("For how many days do you feel unable to work? Doctor follows your wishes..."). The user can then provide their contact details and the desired payment method.
After payment, the customer receives the sick note, issued by a private doctor, digitally or by post. When ordering tests, the customer had no contact with the doctor in question. So far the model has been limited to “colds”, “period pain”, “back pain” and, more recently, “stress”. The homepage also advertises “100% valid AU certificate”.

Advertising for distance treatment

The Competition Center sees the advertising of this service as a violation of Section 9 of the Medicinal Products Advertising Act. The regulation prohibits advertising for distance treatment.
In addition, the statement “100% valid AU certificate” is misleading in the opinion of the Competition Center. From their point of view, this statement creates the impression that the sick note advertised in this way meets all the legal requirements for a certificate of incapacity for work. The certificates of incapacity for work issued by the company may formally meet the requirements for presentation to the employer. However, many lawyers doubt that they also have the necessary evidentiary value, i.e. that they also meet labor and professional law requirements. In fact, to date there has been no decision by the highest court in the labor court that would have recognized such a certificate of incapacity for work as “100% valid”.
Since the company did not issue a cease-and-desist declaration in response to the competition center's complaint, the self-regulatory institution filed a lawsuit with the Hamburg Regional Court (ref. 406 HKO 165/19) at the beginning of October.
“In this fundamental procedure, the competition center is, among other things, having the advertising claim “100% valid AU certificate” examined in court. It would be important for employers to know whether such a certificate of incapacity for work has the necessary probative value,” says Christiane Köber, member of the management board of the Competition Center. The same applies to employees who rely on such a certificate.

LG Munich is already banning ottonova advertising due to remote treatment

In a decision from July 2019, the Munich Regional Court prohibited the insurer ottonova from advertising remote medical treatments in the form of a digital doctor's visit if the insured are offered the opportunity to receive diagnoses or therapy recommendations from Swiss doctors using an app (LG Munich I, judgment of July 16, 2019, 33 O 4026/18, not legally binding). The appeal court will probably have to deal with the planned change to Section 9 HWG. In the government draft of the Digital Care Act, the ban on remote treatment advertising should not apply if, according to generally accepted professional standards, personal medical contact with the person being treated is not necessary. Even with this change, the competition center believes that advertising for the primary care models described remains inadmissible.


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