Questions about the doctor's certificate

If an employee is unable to work due to illness, they are entitled by law to continued payment of wages for a limited period. However, at the request of their employer, employees must prove that they are ill. In most cases, a company will ask for a doctor's certificate. According to the law, the employer may request a medical certificate from the first day onwards. Many individual or collective employment contracts contain a provision stating that the certificate only has to be submitted after 3 or 5 days. If this is the case and the employer has doubts about the employee's incapacity to work during this period, he must be able to justify his concerns.

What happens if there is a disagreement between the trusted doctor and the family doctor?

The question of whether the employer has the right to send an employee to a medical examiner if they have doubts about a medical certificate is still controversial. To prevent conflicts, it is advisable to stipulate this obligation in the employment contract or company regulations. The costs of a medical examination are borne by the employer. If, after examining the patient, the medical examiner comes to a different conclusion than the family doctor, two so-called party claims are legally opposed. It is then up to the judge to assess this evidence. In practice, it can be helpful to confront the family doctor with the different findings of the medical examiner and ask him for a statement. It should be noted that both doctors, the medical examiner and the family doctor, are subject to a duty of confidentiality with regard to diagnosis and treatment. They may only provide information that is related to the fulfillment of the employment contract, for example, whether the employee is restricted or able to work on another task.

Doctors often write their patients as partially unfit for work. But what does "50% unfit for work" mean? Unless the doctor states otherwise, the employer may assume that the percentage refers to the time restriction with the same performance and not the reduced performance with the same working hours. According to a ruling by the Zurich High Court, the percentage stated in the certificate always refers to a full-time workload. A part-time employee with a 70% workload is therefore able to perform 50% of a full-time workload in the event of a fifty percent incapacity to work.

When sick employees still work or submit certificates late

But what happens if an employee who is one hundred percent on sick leave comes to work anyway? Has he thereby proven that he is still fit for work, contrary to the medical certificate? Not in every case, says the Federal Supreme Court. But only if it is only an "insignificant impairment of health". In all other cases, the employee is considered unfit for work, which means that they may not be dismissed during this period until the end of the qualifying period. According to the Swiss Code of Obligations, a dismissal is null and void if it takes place while an employee is on sick leave and must be reissued after the qualifying period has expired. The situation is similar if an employee submits a certificate too late. Here too, the decisive factor is whether the employee was demonstrably unfit for work at the time of termination. If the employee can prove this, the dismissal is null and void, even if the medical certificate is submitted later.

Do you need legal advice?

The Beobachter Advisory Center offers you and your employees expert advice by telephone on legal issues relating to your company - 6 months for just CHF 99. Order the consulting package for SMEs at www.beobachter.ch/kmu or 0800 83 0800.

Book tip

Labor law, from the contract
until termination, 11th, expanded and updated edition, March 2011, Beobachter Verlag, CHF 36.-, ISBN 978-3-85569-440-2