Justified doubts regarding the employee's incapacity for work – how should I proceed?

Expertise 02.07.2020

According to insurance statistics, illness-related absences at the workplace are increasing substantially. It is noticeable that an ever growing number of employers are complaining that their employees are obtaining a doctor's certificate by surreptitious means, e.g. from a doctor who also happens to be their friend, and are feigning their incapacity for work. This is not a mild form of "fudging" but rather a case of obvious abuse. Typical example: An employee who has had his employment contract terminated submits a doctor's certificate (psychological problems) but is already working in a similar position in a probationary period at another company. This employee is pursuing solely the intention of extending his period of notice and thus also his entitlement to a wage.

The following text refers only to circumstances where intentions to abuse the system are clearly revealed. We would not like to suggest in any way that illnesses of employees are based on fraudulent intent or generally need to be scrutinised.

In such cases, the employer regularly ends up as the loser.  It has to continue to pay the employee's salary (in addition to the replacement employee) and can barely count on support from outside. Its per diem sickness allowance insurer will only get involved when the notified incapacity for work exceeds the waiting period defined in the policy, a lengthy illness is to be anticipated and the respective employee agrees to a medical review. Providing proof of the contrary using own means (opinion of a second doctor / legal proceedings) entails a disproportionately high amount of time and financial resources. The outcome of any court proceedings, where the employee is generally in a better position, cannot be assessed for the employer. The employee speculates on this in the justified hope that the employer will not undertake any steps to clarify the circumstances for cost reasons.

We recommend

  1. adopting a clear and strict attitude in the company that aims to deter the employees as far as possible from feigning any incapacity for work.
  2. in the event of abuse, a rapid handling by the deployment of an independent medical officer who does not, as is the case usually, try to examine the entire medical case (very expensive) but instead tries to dissuade the employee from his or her abusive intent through a one-off intervention.

The approach suggested by us does not guarantee any success. People who wish to bypass the system by fraudulent means and act in a tactically clever manner will usually be able to prevail under the cover of the doctor's certificate. This can be highly frustrating for the employer. However, the employee should "think twice" about his or her intention. If the employee does indeed submit a certificate that has been issued on friendship grounds by a doctor, he or she should then at least have to undergo unpleasant proceedings that aim to put the brakes on his or her plan quickly and at low cost.

Deterrent in the form of the corporate culture & employment contract

That the case of abuse mentioned above is not tolerated or accepted must be tangible in the company. This attitude is to be demonstrated openly, right from the start (interview), but also in ongoing operations. An adaptation of the employment contracts is necessary for this. After consultation with Orion Rechtschutzversicherung and on the basis of Art. 26 Para. 2 and 3 L-GAV (collective agreement for the Swiss hospitality industry, as of 1 January 2017), the following clauses can be adopted mutatis mutandis (or handed to the existing employees as an addendum for signature):

Function: Add to the primary activity (e.g. "chef"): Can also be deployed for other functions associated with the hotel operations.

Independent medical officer: "If there are doubts with regard to the accuracy of a doctor's certificate and if there are material grounds or objective indications for this, the employer will make use of its right pursuant to Art. 26 Para. 3 L-GAV and send the employee, at its own costs, to an independent medical officer. The independent medical officer is hereby authorised to record a detailed doctor's certificate with the employee and to send this certificate directly to the employer and its sickness per diem insurer. If the employee refuses to visit the independent medical officer despite a warning to this effect, the employer can temporarily suspend the continued payment of the employee's wage."

Deterrent in the form of the independent medical officer & the detailed doctor's certificate

Action must be taken immediately if the employee nevertheless submits a doctor's certificate that is presumed to have been issued by a friend of his. This requires that the company management is instructed in the necessary steps. The doctor mentioned below has his office in the city of Zurich. Those who do not work in this region can contact Macam AG to find a more suitable point of contact.

Dr. med. Frank Wyler, specialist physician FMH for general medicine who is used as an independent medical officer for various insurance companies has declared himself willing to also act in this capacity for the pool members of Macam AG. When the doctor's certificate issued on friendship grounds is received, Dr. Wyler can be contacted in order to register the employee concerned for an appointment. Dr. Wyler will contact the employee for a consultation within a few days and ask the employee critical questions about his health during a brief consultation. He will not carry out a comprehensive medical examination, nor will he examine all of the employee's health file. Instead, the goal of his investigation is the so-called detailed doctor's certificate.

For the issuing of such a certificate, the employer must send the doctor a workplace description beforehand as a mandatory requirement. The doctor will then assess based on the description which tasks the employee can specifically still perform, what he cannot do and what he may do to what extent. It thus does not involve a medical diagnosis but rather the detailed degree of the incapacity for work. Is, for example, the chef mentioned above in the contractual clauses who can also be deployed for other functions associated with the hotel operations, really 100% incapable of work, or can he help out in the office for 30% of his working time?

It is obvious that the employer is not primarily pursuing the goal of allowing the chef to work in his office for 30% of the working time in the difficult climate. However, the same also applies conversely for the employee who is unexpectedly faced with changed circumstances.

The detailed doctor's certificate is issued directly to the employee by Mr. Wyler, with the information that his employer and the latter's insurance will also receive a copy. Even if this cannot overturn the original doctor's certificate, there is the hope that it may lead the employee to reach an amicable agreement with the employer regarding the termination of the employment contract.

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Christoph Brun

Senior Mandate Manager & Member of the Executive