The significance of a medical certificate in employment law

• Employment Law
• Private Clients
• SME

Medical certificates play an important role in practice when employees are wholly or partially unable to work for a certain period of time due to illness or accident. On the one hand, a medical certificate is relevant for the employer’s obligation to continue paying wages; on the other hand, it can be used as evidence for statutory protection during the blocking period. A medical certificate can then provide information on the inability to work and a possible inability to take holiday. The following article examines the individual aspects in more detail.

General rules

If an employee is unable to work due to illness or accident, the employer must pay their wages for a limited period of time, provided that the employment relationship has lasted for more than three months or has been entered into for more than three months. However, the employee must prove that they are excused for their absence. This is usually done by means of a doctor’s certificate. Many employers only require proof of excused absence from work after a certain number of days. The specific provisions in this regard are usually set out in the employment contract or in the relevant staff regulations. The employer has the right to request a doctor’s certificate from the first day of illness.

Doubts about incapacity for work

If employers have doubts as to whether the employee is actually unfit for work, they have the option of requesting that the employee undergo an examination by a medical practioner. Although the employer does not have the right to ask for a diagnosis, the medical practioner must give an opinion on the employee’s fitness for work and, if necessary, on their remaining capacity for work.

Missing medical certificate

If the employee is unable to provide a medical certificate, the employer may issue a warning to the employee and suspend payment of wages. In the event of a persistent refusal to provide proof of a justified absence, the employer may terminate the employment contract without notice, provided they have first issued a warning and set a deadline for the submission of the medical certificate.

Inability to take holidays

If an employee wishes to claim that they were unable to take holiday due to illness or an accident during their holiday period, they must provide a certificate of incapacity for holiday. Otherwise, there is a risk that the employer will deduct the absence from their holiday entitlement. Illness or an accident during a holiday does not automatically mean that the employee is unable to take holiday.

Temporary protection against dismissal and exceptions in the case of job-related incapacity to work

Swiss law stipulates that after the probationary period has expired, the employee is protected from dismissal by the employer for a limited period of time if he or she can prove that he or she is ill. During what is known as blocking period, the length of which varies depending on the number of years of service, any notice of termination given by the employer is null and void. If the notice of termination was given before the onset of the illness, the notice period is interrupted for the duration of the applicable blocking period and only continues after the end of the blocking period.

Conflict situations at work can also trigger absences due to illness. In cases of certified work-related incapacity, the employee is unable to work in their specific job. However, Swiss case law states that in such instances, the employee can reasonably be expected to work in another job, which is why the statutory protection period does not apply in this case.