Does the employer have to accept a doctor's certificate from the "Whatsapp doctor"?
Recent media reports about a German start-up company offering certificates of incapacity to work via Whatsapp have caused a stir among some companies. What exactly is behind this and what is the legal situation?
The following procedure: The data subject answers in an online form (www.au-schein.de) some questions about the symptoms. A doctor makes the diagnosis and sends the patient the certificate of incapacity for work via Whatsapp. It should be noted that the use of this online service is currently (still) limited to colds, and the maximum confirmed period of incapacity for work is three days.
The legal situation: The patient bears the burden of proof vis-à-vis his employer that he is unable to work. This proof is normally - but not necessarily - provided by a doctor's certificate. Court practice assumes the accuracy of a doctor's certificate as long as no reasonable doubt can be raised about it. Since the "Whatsapp doctor" has neither personal nor telephone contact with the patient, doubts may well be justified and have an impact on the probative value of such a certificate of incapacity for work.
A provision in an employment contract stating that telemedical certificates (without a doctor's visit) are not accepted may at best have a "preventive" effect. Legally, however, a general exclusion would hardly be compatible with the free judicial evaluation of evidence. A confidential medical examination is also usually not a suitable means in the case of short-term absences.
Practical tip: So why not only request a doctor's certificate from the fourth (or fifth) day of illness? This would make "Whatsapp certificates" superfluous. In any case, it is best to simply talk to the person concerned in the event of conspicuous or "unclear" absences.
Author:
Kurt Mettler is an attorney and managing director of SIZ Care AG. Contact: SIZ Care AG, Verena Conzett-Strasse 11, CH-8004 Zurich, info@sizcare.ch, www.sizcare.ch
