In a recent decision of May 4, 2017, the Swiss Supreme Court ruled that a medical officer - i.e. a doctor called upon by the employer to render a second opinion on the working capability of an employee in case of an accident or sickness - remains bound by his or her professional confidentiality rules. In other words, without a prior authorization by the employee, the medical officer may only express an opinion on the existence, duration and degree of work incapacity including the cause for the work absence (i.e., as to whether caused by an accident or due to sickness).
The employee was repeatedly attested by his or her personal doctor a complete incapacity for work. The employer's company then asked for a second examination by a medical officer. Whilst the employee authorized 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 this overall diagnosis to the employer. The Supreme Court of the Canton of Zurich condemned the medical officer in 2016 for a violation of professional secrecy pursuant to the Swiss Criminal Code of 1937.
The Swiss Federal Supreme Court dismissed in its decision of May 4, 2017, the medical officer's complaint. Whilst the Swiss Federal Supreme Court acknowledged that the medical officer must have comprehensive information on the employee's health in order to assess his or her work capability, the employee may at the same time rely on the fact that any additional information is not passed on to the employer without a further consent. In the specific case, the employee had authorized the medical officer to issue a regular medical certificate opining on the existence, degree and duration of the work disability, but information on the employee's personal, professional and financial situation was not covered by this general employee authorization.
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