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Frequently Asked Questions about chronic diseases

  • Chronic diseases are, for instance, HIV, migraine, diabetes, asthma, chronic respiratory or coronary heart diseases. In a 2019 poll, 46 per cent of those surveyed reported living with a chronic disease. (https://de.statista.com/statistik/daten/studie/707617/umfrage/umfrage-zur-verbreitung-von-chronischen-krankheiten-in-deutschland/)

    According to the Federal Ministry of Health, a person has a serious chronic disease if they can prove seeing their doctor at least once per quarter for the same disease over at least one year and also meet one of the following criteria:

    • long-term care needs of care grade 3, 4 or 5
    • a degree of disability or reduced earning capacity of at least 60 percent
    • the need for continuous medical care without which, according to medical assessment, a life-threatening exacerbation of the disease, a shortened life expectancy or a permanent quality of life impairment can be expected as a result of the health problems caused by the disease.
  • Under specific conditions, chronic diseases can be recognised as a disability. This judgement was made by the European Court of Justice (case numbers C-335/11 and C-337/11) in 2013 in an effort to protect those affected from discrimination on account of their state of health. Specifically, the Court concluded that “… if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78. On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78.” (Judgment of the Court (Second Chamber), 11 April 2013)

    The important point here is the interaction between physical, mental or psychological impairments and workplace barriers that hinder the persons with disabilities and chronic diseases to fully and effectively participate in professional life on an equal basis with other workers.

  • While chronic diseases are unchangeable personal characteristics, they are only protected under the General Equal Treatment Act (German abbreviation: AGG) if they are also considered to be disabilities. A disease per se is not listed in the AGG as a ground for discrimination.

    Current case law struggles to provide a clear-cut definition and straightforward distinction between chronic disease and disability. Chronic diseases are not explicitly recognised as being covered by “disability” in Art. 3 (3) sentence 2 of the Basic law and section 1 of the General Equal Treatment Act (AGG). They are only covered by the AGG if they are also considered to be disabilities, in other words if the person’s physical state, cognitive faculties or mental health are highly likely to differ for more than six months from what is typical for someone that person’s age and their participation in social life is impaired.

    In late 2013, the Federal Labour Court handed down a decision that decisively changed the approach to chronic diseases and strengthened the rights of those affected. One man filed a case after being unlawfully dismissed on account of his HIV infection. The Federal Labour Court found that an asymptomatic HIV infection was covered by the definition of disability in the General Equal Treatment Act. The Court based its decision on a more dynamic understanding of the term “disability” that also looked at the broader environment of the person concerned. In its view, the person’s participation in society, which also includes the world of work, has to be substantially impaired, as also set out in the Social Code’s definition. It pointed out that such an impairment can result from the interactions between various social context factors, such as societal attitudes and barriers. Consequently, disability can above all also stem from others preventing the person from participating in society through stigmatisation or avoidance.

  • According to the expert opinion “Schutz vor Benachteiligung aufgrund chronischer Krankheit” (only available in German) prepared on behalf of the Federal Anti-Discrimination Agency, discrimination occurs in the first place in working life and with insurance services. Persons with a visible chronic disease and/or a disease that carries a stigma are particularly affected by discrimination. Persons with HIV/AIDS or obesity are the most likely to report being disadvantaged or discriminated against. Today, improved health care allows HIV-positive individuals to enjoy, for the most part, full participation in working and social life. Nevertheless, HIV-positive individuals experience exclusion based on stigma or rejection.

    In working life, disadvantage due to chronic disease manifests in all the stages of employment - during the application process, when concluding the contract, during employment and when terminating the employment. Frequently, for instance, chronic diseases are not disclosed when applying for a job or while employed for fear of adverse consequences, such as not being recruited or dismissal. A 2012 study by the German AIDS Relief Association (Deutsche AIDS-Hilfe) found that 26 percent of employers reacted with discrimination when learning of an HIV infection.

    In most cases, persons with chronic diseases have to pay considerably higher insurance premiums and are sometimes even denied a private old age, health insurance or whole life insurance. Disadvantages especially affect life, occupational disability, accident and health insurances.

    The freedom of contract in the private Insurance Contracts Act (Versicherungsvertragsgesetz) means that insurance companies are basically free, depending on the result of a risk calculation, to refuse the conclusion of an insurance contract or to make it conditional on comparatively unfavourable terms (such as higher premiums). Section 20 (2) sentence 2 of the AGG states that differences of treatment with reference to premiums and benefits are permitted where these are based on recognised principles of risk-adequate calculations, in particular on an assessment of risk based on actuarial calculations which are in turn based on statistical surveys.

  • The Anti-Discrimination Agency champions a comprehensive protection against discrimination of persons with disabilities. The lack of legal certainty in cases of discrimination and a vague definition of chronic disease hamper the protection of those affected.

    Anti-discrimination law should clearly specify that the term “disability” can cover specific diseases if they involve impairments that are likely to be long term. The Federal Labour Court has assumed this to be the case for asymptomatic HIV infection and suggested that the same might apply to diabetes, arthrosis or rheumatism.

    The protection from discrimination on account of chronic disease should be explicitly enshrined in section 1 of the General Act on Equal Treatment (German abbreviation: AGG). An amendment of the AGG is planned to ensure legal certainty by covering “chronic disease” alongside “disability”.

    More details on the need for action are included in the evaluation on the General Equal Treatment Act.