An employee’s incapacity for work and, accordingly, a medical certificate play an important role in employment law. It is the employee’s responsibility to provide proof of incapacity, and he usually submits a medical certificate for this purpose. However, this often raises more questions than it answers.
Importance of incapacity for work
Incapacity for work entails various legal consequences. A person who is unable to work through no fault of his own is entitled to continued payment of wages (Art. 324a and b SCO). After the end of the probationary period, if the employee is wholly or partially prevented from working through no fault of his own, the employer may not terminate the employment relationship for a certain period of time, depending on the duration of the employment relationship (Art. 336c para. 1 lit. b SCO). Holidays may also have to be granted if the enjoyment of holidays is not guaranteed due to incapacity for work occurring during the holidays.
Definition of incapacity for work
Incapacity for work exists if the performance of the contractually agreed work is impossible (e.g. in the case of influenza) or unreasonable (e.g. no obligation on the part of the employee to postpone until the holidays a medical intervention that can be postponed but is necessary). The incapacity for work must always be assessed from a functional point of view, in relation to the specific contractually agreed job performance. An office worker can also perform his work with a sprained ankle, but a construction worker cannot.
Special case of workplace-related incapacity for work
Workplace-related incapacity for work exists if the employee is prevented from performing his specific contractually agreed job at his employer’s location, but would be fully capable of working at another deployment location or with another employer. In contrast, a general incapacity for work exists if the employee is unable to perform his work irrespective of the employer and the place of work.
The employer’s obligation to continue to pay wages is not affected by workplace-related incapacity for work (apart from benefits paid under the daily sickness allowance insurance). In contrast to a general incapacity for work, workplace-related incapacity for work does not give rise to protection against dismissal for a certain period of time. In the case of merely workplace-related incapacity for work, the absence of protection against dismissal is justified by the employee’s ability to look for and take up another job without difficulty during the notice period.
Proof of incapacity for work by the employee / doubts about the medical certificate
The burden of proving the existence of incapacity for work rests entirely with the employee, who submits a medical certificate for this purpose. The courts generally rely on this unless there are reasonable doubts. Such reasonable doubts may arise if medical certificates are submitted successively by different doctors (“doc shopping”), in the case of remote diagnoses (e.g. based on a telephone call, without an examination by the doctor), if the certificate does not contain a minimum duration of incapacity for work (“until further notice”), if the certificate does not bear the doctor’s handwritten signature and/or the date of treatment or examination, or if there is excessive backdating (more than 7 days). The Zurich Medical Society recommends that retroactive certificates be marked “according to the patient’s indication” and be issued retroactively for a maximum of one week, stating the date of treatment. Longer backdating may be quite plausible in individual cases, however, for example if the employee has already been incapacitated for work for a long time and is being treated by the same doctor or in the case of serious illnesses.
Consultations with the doctor and confidential medical examination
Doctors are bound by medical secrecy and are not allowed to disclose a diagnosis. Therefore, medical certificates are not particularly informative. There is a lack of useful information on the application of any residual capacity for work and on what is really meant by partial incapacity for work. Such ambiguities can be clarified by asking the doctor. The doctor may tell the employer, for example, whether there is a general or a workplace-related incapacity for work, how a 50% incapacity for work is actually to be understood and whether he has examined the employee clinically or merely made a remote diagnosis.
If there are reasonable doubts about the accuracy of a medical certificate, the employer is entitled to request a medical examination at his own expense. According to academic research and legal precedent, ordering such an examination by a medical officer is permissible even if it is not explicitly provided for in the contract (employee’s duty of loyalty). If the employee refuses the examination, the employer may take the position that the incapacity for work — despite a medical certificate — is not proven and request the employee to work. If the employee fails to comply with this request, the employer may stop paying wages.
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