The All-or-Nothing Principle Falls: Partial Incapacity for Work Arrives on 1 January 2028

With the adopted Act on Stabilising Statutory Health Insurance Contribution Rates (GKV-Beitragssatzstabilisierungsgesetz), the legislator breaks with a historic dogma of German employment law. From 1 January 2028, under the newly introduced Section 44c of Book V of the German Social Code (SGB V), there will no longer be only a strict distinction between full fitness for work and full incapacity for work. The new legal instrument concerns insured persons who, as a result of a serious illness, are foreseeably unfit for work for more than four weeks. In future, the treating physician will be able to certify partial incapacity for work at a fixed level of 25%, 50% or 75% of regular weekly working hours. This allows those affected to return to work gradually and flexibly, while securing them pro-rata sickness benefit (Krankengeld) for the portion of working time they cannot perform.

Crucial for practice is the principle of double voluntariness enshrined in the law: no one can be compelled to accept partial incapacity for work. The employee indicates their willingness, after which the employer must actively and expressly consent. Following recent amendments during the legislative process, consent is no longer deemed to have been given if the company fails to respond within the prescribed time limits; silence now counts as refusal, and the certificate remains one of full incapacity for work.

Partial incapacity for work does not displace the established 'Hamburg model' of gradual reintegration into work. Although the law will in future require partial incapacity to be examined first, the treating physician alone retains authority over the medical decision. Partial incapacity only comes into play if the physician considers genuine partial performance to be medically appropriate and certifies it – otherwise, the classic gradual reintegration remains the route.

Despite the aim of reintegrating the long-term sick more quickly, the new rules entail considerable administrative hurdles. From 2028, HR departments will face a drastically increased bureaucratic workload in payroll accounting. Splitting pay in parallel into pro-rata remuneration and partial sickness benefit calculated by the health insurance fund requires entirely new payroll processes and interfaces.