On May 4 2017 the Supreme Court ruled that a medical officer called upon by an employer to render a second opinion on the working capability of an employee in case of accident or sickness remains bound by his or her professional confidentiality rules. In other words, without prior authorisation by the employee, the medical officer may express an opinion only on the existence, duration and degree of work incapacity, including the cause of absence (ie, whether a result of accident or sickness).

In this case, the personal doctor repeatedly attested the employee's complete incapacity for work. The employer's company asked for a second examination by a medical officer. While the employee authorised the medical officer to submit a general medical report to the employer, the medical officer also included information on the employee's personal, professional and financial situation and revealed the overall diagnosis to the employer. In 2016 the Supreme Court of the Canton of Zurich condemned the medical officer for a violation of professional secrecy pursuant to the Criminal Code 1937.

The Federal Supreme Court dismissed the medical officer's complaint. While the court acknowledged that the medical officer must have comprehensive information regarding an employee's health in order to assess his or her work capability, the employee should also be able to rely on the fact that any additional information is not passed on to the employer without further consent. In this case, the employee had authorised the medical officer to issue a regular medical certificate opining on the existence, degree and duration of the work disability. Information on the employee's personal, professional and financial situation was not covered by this general employee authorisation.

For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.