We are sure every HR manager or supervisor has at some time been annoyed by this: as soon as the atmosphere in an employment relationship becomes problematic or a dismissal is imminent, the employee suddenly becomes "ill". This prevents a dismissal or would render it null and void. In our practice, we also see the same phenomenon after a valid dismissal – it seems that employees are often somewhat less "robust" during the notice period and extend the end of the employment relationship (and thus the salary payments) by becoming "unable to work" at the right point in time due to blocking periods.
Of course, employees can be genuinely and legitimately unfit for work – and in the vast majority of cases, they are. In these cases, they rightly deserve legal protection. However, as lawyers acting for employers, it is in the nature of things that we are primarily involved in controversial cases, which is why we are often confronted in our practice with potential abuses of the protection provided by the blocking period.
Below we provide answers to the 10 most frequently asked questions that we are asked time and again in this context:
1. Who must prove that the employee is ill or healthy?
According to the fundamental principle of Art. 8 of the Swiss Civil Code, a party must prove the facts from which it derives a claim. It is therefore up to the employee to demonstrate and prove their incapacity to work due to illness.
2. Does a doctor's certificate have to be submitted?
The law does not specify whether or when a doctor's certificate must be submitted. Employers therefore generally have the right to request a doctor's certificate from the first day of the claimed incapacity for work. This is usually contractually regulated in collective labour agreements or employment contracts under private law. As a rule, a reference is required from the third or fourth day of illness.
3. What happens if an employee does not provide a doctor's certificate?
If no doctor's certificate is submitted despite contractual provisions or despite the employer's request, the employer can warn the employee and demand the doctor's certificate. What happens if the employee refuses to provide a doctor's certificate is controversial. An aggressive approach for employers would be to suspend salary payments unless the employee can provide other evidence of incapacity for work.
4. What formal and content requirements should a doctor's certificate fulfil?
In formal terms, a doctor's certificate should be dated, stamped and signed by the attending or examining doctor.
In terms of content, the doctor's certificate should contain information on (i) the cause of the incapacity for work (illness or accident); (ii) the start, duration and degree of incapacity for work (as a percentage); and (iii) the date and nature of the consultation.
5. Can a doctor's certificate be unreservedly trusted?
Under certain circumstances, there can be considerable doubt about a submitted doctor's certificate. On the one hand, if its content is incomplete, unclear or illegible, if the examination is obviously incorrect, if the doctor's certificate was submitted too late or issued retroactively, if there are several doctor's certificates from different doctors or if a doctor's certificate was issued without an examination (e.g. based on information provided by the employee over the telephone). On the other hand, the timing of the incapacity for work, e.g. if the employee always reports sick before or after weekends or public holidays, can also raise doubts about the veracity of the doctor's certificate.
If anything is unclear, the doctor may only provide further information to a very limited extent and in compliance with doctor-patient confidentiality. The employee's diagnosis may not be disclosed. However, a detailed doctor's certificate may be issued with the employee's consent. As part of a detailed doctor's certificate, it is also possible to include information on the job-related nature of the incapacity for work and the residual ability to work in the certificate. In this respect, a job description, information on the employee's main tasks, the special features and requirements of the job and the working hours must be included.
6. What can I as an employer do about falsified doctor's certificates?
Disputes about incapacity for work and doctor's certificates are not uncommon in practice. It can happen that doctor's certificates are forged or falsified. As a doctor's certificate is deemed a document under criminal law, a falsified certificate can even have criminal consequences. In practice, however, this problem can be minimised by asking the doctor whether their certificate was actually issued in this way.
7. What can I do as an employer against certificates issued as a favour?
Certificates issued as favours are also problematic, where an incapacity for work is certified despite knowledge of the capacity to work. Issuing a certificate as a favour can have consequences under criminal law and, as a violation of the FMH Code of Professional Conduct applicable to doctors, disciplinary consequences. Indications of a false certificate may arise from the circumstances and the behaviour of the employee, e.g. repeated submission of certificates from different issuers or disproportionately late visits to the doctor. In practice, however, it is likely to be difficult to prove a false certificate due to a lack of sufficient information. As a control option, the employer at least has the possibility of having the employee's assertion checked by a doctor of their choice (see below).
8. What is the evidentiary value of a doctor's certificate?
A doctor's certificate is not absolute evidence within the meaning of the Swiss Code of Civil Procedure, but merely a party assertion that is subject to judicial judgement. However, the doctor's certificate has a certain weight as it comes from a specialist. Nevertheless, the court decides, after freely assessing the evidence, whether the factual assertions of the employee are correct and whether the doctor's certificate is conclusive. In particular, it may deny the evidentiary value of the doctor's certificate if it is refuted by the behaviour of the employee during the alleged incapacity for work or called into question by circumstances that immediately preceded the incapacity for work.
9. Can I send an employee to a doctor of my choice?
If there are indications that call into question an employee's incapacity for work, employers can have the alleged incapacity for work examined by a doctor appointed by them. The costs of such a medical examination are borne by the employer. The employer's right to call in a doctor of their choice is derived from the employee's duty of loyalty. In order to avoid discussions, it is advisable to explicitly include such a provision in the general terms and conditions of employment or in the personnel regulations.
In the case of a medical examination by a doctor of the employer's choice, it should be noted that this doctor is also bound by professional secrecy and may not disclose the diagnosis. They can only confirm or reject the findings of the previously issued doctor's certificate.
If the doctor appointed by the employer confirms the doctor's certificate submitted by the employee, it will be extremely difficult for the employer to disprove the employee's incapacity for work. However, if the doctor appointed by the employer comes to a different conclusion than the first doctor consulted, the employer can rely on the former's findings and call the employee back to work or suspend salary payments. This often leads to a clarification of the situation.
10. Can the employee refuse to undergo an examination by a doctor appointed by the employer?
If the employee refuses to cooperate in a legally ordered medical examination by a doctor appointed by the employer, this cannot be forced. However, the employee must then accept the disadvantages resulting from his refusal, namely (i) the possible invalidation of the previously submitted doctor's certificate; (ii) a possible dismissal without notice if they have previously been given a relevant warning and (iii) the (temporary) suspension of salary payments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
