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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