Inability to work in Switzerland:
Answers to the 5 most frequently asked questions

Article 6 of the General Part of Social Insurance Law (ATSG) defines incapacity for work as the partial or complete inability to fulfil one's previous occupation or current or previous area of responsibility. The impairment can be based on physical, mental or psychological health.

Incapacity for work can be determined by a doctor. As soon as you have been assessed as unfit for work, the doctor will issue you with a corresponding certificate of incapacity for work. You are obliged to send this certificate to your employer within three working days.

At this point, it is important to know that a certificate of incapacity for work is a legal document that should be filled out conscientiously by your attending physician. All information must therefore be truthful. "Turning a blind eye" and issuing a certificate of incapacity for work as a favour can result in criminal prosecution for doctors.

Content and form of the certificate of incapacity for work

Although there are no legal regulations on the form or content of a certificate of incapacity for work, it is nevertheless important that the wording is precise and cannot be misunderstood. Such a certificate must also state the provisional period of incapacity for work and the extent to which you are unfit for work. Are you not allowed to work at all during this period or are you allowed to work part-time? If so, under what conditions can you be expected to work from a medical point of view? If you are unfit for work for a longer period of time, your doctor should provide sufficient justification for the decision.

Examples of suitable wording

• "The patient Maria Mustermann is 100% unfit for work from 1 February 2021 until probably 28 February 2021. The next consultation in our practice is planned for 20 February 2021."
• "The patient Benedikt Muster is still 100% unfit for work (see doctor's certificate dated 1 October 2021). The incapacity to work is expected to continue until 31 October 2021. The next follow-up consultation will take place on 25/10/2021 in our practice."

The exact diagnosis is not stated in the certificate of incapacity for work due to medical confidentiality. However, if you expressly request such information, this is possible. Otherwise, you only need to inform your employer of the type of incapacity for work (illness, accident, pregnancy).

Certificate of incapacity for work in the event of partial incapacity for work

In some cases, your health restrictions may be such that your doctor considers you fit for work, but advises you from a medical point of view not to carry out some of your usual activities for a predefined period of time. She may also advise you to temporarily reduce your working hours. In such a case, the content of the certificate should be designed in such a way that it is clear which activities or which number of hours should be reduced. Your verbal description of the activity and your workplace environment to the doctor is usually sufficient for a valid medical assessment.

Examples of suitable formulations

"The patient Carina Mustermann can only work 5 hours a day from 1 September 2021 until probably 29 February 2022..."

"Patient Noah Muster can continue to work. However, from 1 December 2021 until an indefinite period, he can only be used for light lifting activities up to 20 kg or for sedentary activities. The next consultation..."

Communication with paid sick leave insurance

A precise certificate of incapacity for work is often worth its weight in gold, especially when communicating with paid sick leave insurances. The insurers have the task of checking exactly whether you could possibly return to full work performance in another profession or working environment despite your health restrictions. In particular, if you are on sick leave for a long period of time, paid sick leave insurances are entitled to receive regular updates from your doctor as to whether such a measure would be possible. If the insurer has doubts about the doctor's opinion, it can ask you to see a medical examiner.

Certificate of incapacity for work in the event of work-related incapacity for work

Work-related incapacity for work is when the complaints have arisen in relation to the specific job. Typically, these are complaints that result from ongoing psychological stress, such as bullying in the workplace.

If a doctor issues such a certificate of incapacity for work, they must remain neutral in their description, as often physical evidence procedures such as a CT scan cannot be used and there is then a lack of evidence. Instead, he or she can use phrases such as "...according to the patient". He or she may not make a recommendation, but may confirm use in a different setting.

Examples of suitable wording

"The patient Sven Mustermann is 100% unfit for work in his current job, but is fully employable in another environment in a comparable position or field of activity."

Tip: You should be aware that employers and insurance companies will scrutinise certificates of incapacity for work relating to the workplace. Nevertheless, you should not let this put you off and take this route for the sake of your health. An employment lawyer can advise you in detail in a consultation and also support you in the further process if you wish.

If your employer or insurer has doubts about your incapacity for work or simply wants to obtain a second opinion, they are entitled to order an examination under labour law. You will then receive a request to go to a specific doctor appointed by your employer or insurer. In principle, you have the right to refuse. From a labour law perspective, however, this does not always make sense, as it can complicate the process and lead to a labour court case.

Medical examination: procedure, duty of confidentiality, costs

It should be borne in mind that a medical examination by a medical officer of confidence takes place in the same way as any regular medical examination. Medical confidentiality also applies here. Your employer or insurer will only receive confirmation that you are unfit for work, what percentage and whether it is due to illness or an accident. The costs of the examination are irrelevant for you. These must be paid by your employer, who will be invoiced directly by the doctor.

Your rights with regard to continued payment of salary in the event of illness are usually set out in writing in your employment contract. In addition, Articles 324a and 324b of the Swiss Code of Obligations (CO) state that employees are entitled to continued payment of wages if they are unable to work through no fault of their own and if the reason lies with the person themselves.

Duration of continued salary payment

How long you continue to receive your salary depends primarily on your previous years of employment with the respective company. There are also cantonal differences. In the first year of your employment, however, continued payment of salary is at least three weeks in all cantons. The Swiss Confederation provides an overview by canton with the Basel, Berne and Zurich scales.

Paid sick leave insurance

In Switzerland, employers are not always legally obligated to procure paid sick leave insurance. However, an increasing number of companies are opting for this sensible measure alongside the procurement of accident insurance. Paid sick leave insurance usually covers 80 per cent of lost wages for 720 days in the first year of incapacity for work. Although this provision is linked to a certain percentage of incapacity for work, this is usually already the case from around 25 per cent. 

Tip: If your employer has guaranteed you paid sick leave insurance in your employment contract, but you find out in the event of illness that you do not have any, your employer is liable for damages. You can then claim the amount from your employer that you would have been entitled to if you had taken out the insurance.

Accident insurance

Every Swiss company is required to procure accident insurance to avoid potentially incurring immense costs. Therefore, in the event of a workplace accident, you can generally rest assured that you will be financially protected. The compensation amounts are similar to those of daily sickness benefit insurance, as outlined in Articles 15 to 17 and Articles 22 and 23 of the Federal Law on Accident Insurance (UVG). In the case of 100% incapacity to work due to an accident, the accident insurance pays a percentage of 80% of your salary from the third day onwards. In the case of partial incapacity to work, the amount is reduced proportionally.

Article 336c CO provides you with special protection against dismissal during illness or following an accident after the end of the probationary period. In the first year of employment, your qualifying period is 30 days. This means that if you are on sick leave for a maximum of 30 days per year, your employer may not simply dismiss you if you can prove that you are genuinely unfit for work. The blocking period increases to 90 days from the second year of employment, and 180 days from the sixth year.

Exceptions

Work-related incapacity for work with a physical connection is exempt from protection against dismissal. Your employer may still be able to dismiss you if they can prove that you have been 'off work'. In legal terms, this is referred to as wilfully feigning incapacity for work. In fact, however, such behaviour usually only leads to a one-off warning and only in very serious cases to immediate dismissal. In which case the protection against dismissal is definitely limited are mass dismissals for purely economically necessary reasons.