You doubt the accuracy of a medical certificate?
An employee reports sick and supplies evidence by way of a medical certificate. However, you as the employer doubt the accuracy of the certificate. In such a case, you can register the employee for a checkup with an independent medical examiner of your choice to review the matter and get a second opinion.
Definition of independent medical examiner
An independent medical examiner is a medical practitioner with adequate expertise who is chosen and paid by the employer to examine the employee. If needed, this can also be a psychologist.
Appointment with an independent medical examiner
If the employer has reason to doubt the accuracy of the employee’s medical certificate based on objective grounds, they can send the employee to an independent medical examiner.
Dieses Recht steht Arbeitgebenden bereits aufgrund des Gesetzes zu. Employers have this right by law. Nevertheless, we recommend also setting out this right in the employment contract.
The request to the employee to go to an independent medical examiner should not be rushed. Only in the case of doubt regarding the employee’s medical certificate or generally regarding the employee’s incapacity to work is such a measure expedient. It should not be construed as harassment.
Employees’ right of refusal
Employees have the right to refuse an examination by an independent medical examiner if there are significant grounds for doing so. Such grounds are deemed to exist, for example, if the request violates the dignity of the employee (e.g. harassment or personal animosity of the employee toward the independent medical examiner).
If the employee refuses to go to the independent medical examiner without significant grounds to do so, you can issue them a warning and send a (second) request for them to see the independent medical examiner within a suitable period of time. At the same time, you can threaten that if they refuse they will lose their claim to continued salary payment. If the employee again refuses without significant grounds to do so, they risk losing continued salary payment.
It is the responsibility of the employee to prove that they are incapable of working. If the employer’s doubt regarding the accuracy of the medical certificate is founded and no further evidence of the incapacity for work is provided, then it is deemed unproven. In this case, the employer is not obligated to continue salary payment.
If, after several warnings, the employee still refuses to see the independent medical examiner, then termination without notice would be justified.
Labor law data protection in accordance with Art. 328b of the Swiss Code of Obligations
The independent medical examiner may only gather information for the employer that is necessary to assess the employee’s capacity for work. One example is the duration and degree of incapacity for work. They may not make a diagnosis. Without the consent of the employee, the independent medical examiner of the employer may not disclose the type of illness or accident, or issue a medical certificate, since they are bound by their duty to maintain medical confidentiality. The fact that the employer pays the examiner does not change this.
If the employee is examined by the independent medical examiner, this is considered to be tacit consent that a medical certificate may be sent to the employer.
Subtitle: Contradictory findings
The medical certificate of the employee is only one of many ways to prove incapacity for work. If the medical certificate of the independent medical examiner contradicts the findings of the employee’s original certificate, then this raises the question of which certificate is more credible.
This is determined by the reputation and expertise of the examining practitioner, the duration and scope of the checkup, and the number of examining practitioners or specialists, among other factors.
In individual cases, additional evidence such as witness testimony or photographic evidence can be allowed.
Accident and health insurance
Employees are obligated to have accident insurance as well as, in many cases, daily sickness benefits insurance. These insurance policies also often take measures to send employees in justified individual cases to an independent medical examiner due to contractual agreements. We recommend clarifying your next steps with the corresponding insurance provider.
Here you can find a sample document for such an agreement.