Is a medical certificate required from day one?

Is the working population getting sick more often?

Figures from the Federal Statistical Office show that absences due to illness or accident are continually increasing. In 2010, full-time employees were absent an average of 6.3 days per year. Last year, this figure was 7.6 days, which corresponds to an increase of more than 20%. In 2022, the average value even increased to 9.3 days, probably due to the pandemic.

In a survey, eight out of ten major loss of earnings insurance companies confirm this trend. Most of them cite a sharp rise in mental illnesses as the main reason. Helsana, for example, indicates that the proportion of cases diagnosed with “psychological and behavioral disorders” is certainly less than 8%. But these cases would represent around 30% of all per diem benefit costs.

Conditions of absence

Sometimes we don’t go to work because of headaches, while others still want to fulfill their professional obligations. However, according to the medical certificate, they should stay in bed. There are therefore large differences in the perception of pain or disability.

Labor law does not provide clear criteria on this issue. The law of obligations presupposes the absence of fault as a reason for absence. With few exceptions, illness or accident is never considered a fault, as Roger Rudolph, labor law expert at the University of Zurich, explains. An exception would be, for example, the case of a person who, despite warnings, enters an avalanche slope while ski touring and has an accident.

In other words, there is a lot of room for interpretation. Anyone who, following an illness or accident, feels so ill that work seems unbearable can call in sick.

Medical certificate from day one?

According to the specialist, short absences are rarely contested. But when employees desert their workplace unusually too often and regularly extend their weekend with sick days on Friday or Monday, the employer may begin to have doubts.

A skeptical employer, however, only has limited means of pressure. Above all, employees are required to certify that they are unwell. If they do not provide proof of their illness, the employer can assume that they are in good health. This can lead to serious consequences, up to and including dismissal.

Proof of an illness or accident is provided by the medical certificate. In Switzerland, workers must present this document from the third day. But this deadline is anchored neither in law nor in judicial practice. A company can therefore require a certificate from the first day of absence, if neither the employment contract nor the personnel regulations provide for other provisions. In branches where there is a shortage of personnel or in the doubtful cases mentioned, the medical certificate is customary from the first day of illness.

The importance of the examination by the medical advisor

If in doubt about incapacity for work, companies or insurers can request a second opinion from a medical advisor. Often, this is done quite automatically after receiving a certain number of daily allowances, explains Luzius Hafen. A specialist lawyer from Advo5, he represents employees in contentious matters. If the medical advisor comes to a different conclusion, the situation can quickly get worse.

“A sick person is often overwhelmed and if their doctor does not support them, they are lost,” he adds. When in doubt, medical advisors side with the client, and completely unrealistic recovery predictions often pose a problem. This is why it is entirely appropriate to critically question a certificate from the medical officer.

What is insurance coverage for?

Many companies have taken out loss of earnings insurance in the event of illness. This generally provides that employees receive 80% of their salary in the event of illness for a maximum of two years. Without these daily sickness allowances, the employer is required to pay the full salary for three weeks during the first year of service. The duration of salary payment increases with the duration of the engagement. There may be regional differences.

In the event of permanent disability, it takes at least one year, often two or three years, to obtain a disability pension. From the employee’s point of view, daily allowance insurance in the event of illness is preferable to maintaining salary without insurance, because it allows the absence to be made up for a longer period of time until a possible pension is earned.

“But insurers do a certain number of things to avoid having to pay the salary for the entire duration of the two years,” says Luzius Hafen. For example, the insurance may stipulate in small print that benefits end sooner if you leave the company.

Many insurers also offer personal monitoring, which can, for example, enable faster reintegration or retraining. In addition to the positive aspects of such monitoring, the expert has some reservations: “I have already seen that a person had to give up compensation in exchange for coaching, regardless of the progress of their illness.”

When is it allowed to resign?

Although there is a period of protection against dismissal in the event of illness or accident, this is limited in time. During the first year of service, it is thirty days, ninety days from the second to the fifth year and one hundred and eighty days from the sixth year. Protection is only valid during absence due to illness. Upon resumption, dismissal is possible.

In practice, it is common for employees to become ill after being made redundant. In this case, the termination of the employment contract remains valid, but the date is postponed depending on the protection period. Typically, it is extended until the end of the current month, as Roger Rudolph explains.

Finally, it sometimes happens that a company dismisses a sick employee during the furlough period. Such termination is not valid and must be renewed after the expiration of the protection period.

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