Continued payment of salary in the event of illness in Switzerland

If an employee falls ill or has an accident, he or she can continue to receive regular wages for a certain period of time thanks to the continued payment of wages in the event of illness provided for in the Swiss Code of Obligations (CO). This is laid down in Article 324a CO. Pregnancy is also considered a reason for continued salary payments during the employee's absence. The entitlement to continued payment of wages in the event of illness applies for each year of employment and is automatically extended.

However, there are two exceptions: if the employee is in their three-month probationary period, the so-called waiting period, and if it is a short-term temporary employment contract of less than three months. In this case, the employer is not obliged to continue to pay the salary during the employee's absence due to illness.

How long does the continued payment of wages last?

There are scales for calculating the duration of continued salary payments, which are based on the employee's years of service with the company. If the employment contract does not provide for daily sickness benefits insurance, the employer is obliged to pay the full salary for the period of absence. In such a case, the CO stipulates that employees are entitled to three weeks' continued payment of salary in the first year of service, which can be extended by a "reasonable longer period" depending on the length of service.

The employment contract may also provide for daily sickness benefits insurance in favour of both parties, which is very often the case in practice. With most daily sickness benefits insurance policies, you are entitled to payment of at least 80% of your salary over a period of 720 or 730 days and up to 900 days. The employer must also pay at least 50% of the premiums

According to Article 324a CO, continued payment of wages during an employee's illness is only possible if the employee is not responsible for their absence. For example, illness and accidents are considered legitimate reasons, as is absence to "fulfil a legal obligation or a public duty". In addition, the waiting period of three months of employment with the respective company must have been exceeded.

In all of these cases, the employer is obliged to "pay the salary due for a limited period of time, including appropriate compensation for lost wages in kind".

If a standard employment contract or collective agreements have been concluded, these may apply to the continued payment of sick pay, provided they are at least equivalent (Art. 324a, paragraph 4 CO). For example, a company agreement may provide for longer continued salary payments than would be the case under Swiss law.

Tip: According to Article 329h CO, it is also possible to take up to ten days' paid leave per year to care for a sick family member (up to three days per sickness event). In the case of a child who has been seriously affected by an illness or accident, the duration of carer's leave is extended to up to 14 weeks.

When does continued payment of wages cease in the event of illness?

The continued payment of wages is therefore only granted if the reason for the absence is attributable to the employee and is not the fault of the employee. However, the allowance does not apply if the employee is prevented from working for external reasons such as weather disasters, epidemics, power failures, etc. (Article 324 CO). Pregnancy does not count as a self-inflicted reason here, so expectant mothers are also entitled to continued payment of salary.

Do I have to justify my absence due to illness?

If an employee is absent due to illness, she is obliged to inform her employer. As a rule, however, she is not obliged to justify her absence with a medical certificate in order to receive continued payment of wages.

In legal practice, it is automatically assumed that employees are credible. However, the employer is entitled by contract to demand a medical certificate from the first day of absence; in most contracts, this condition applies from the third or fourth day of absence in the event of illness. If the illness lasts longer, the employees concerned must generally submit further sickness certificates at regular intervals.

If an employee falls ill during their holiday, they are also entitled to continued payment of wages during their illness. To this end, they must submit a medical certificate to their employer. The paid holiday days are then converted into sick days.

Swiss law protects employees who are absent due to illness against dismissal during their absence. This is known as the qualifying period. It is between 30 and 180 days, depending on the years of service: 30 days in the first year of service, 90 days from the second year and 180 days from the sixth year. In the case of absence due to pregnancy, this period is also 180 days and up to 16 weeks after the birth. 

An example: An employee falls seriously ill on 6 September in the first year of employment. The continued payment of salary then runs until 26 September. If the employer wishes to terminate this employee's employment contract, he can only do so after the 30-day qualifying period has expired, i.e. on 6 October. Including the mandatory one-month notice period, this would lead to an official end of employment from the end of October. In this case, the employee would be employed until 31 October, but would no longer receive a salary from 26 September.

Special case: However, if the employee's second year of service began during the period of absence due to illness, the employee would continue to receive their salary from the start of the second year until the end of their employment. 

The employer may therefore not part with the employee during the entire period of suspension and any earlier termination of the employment contract would be invalid. An employee who is dismissed while on sick leave can sue their employer for unfair dismissal.

If an employee is unable to work for more than 30 days and is potentially long-term disabled, they can contact the IV office in their canton of residence. The IV centre will check whether there is a risk of disability and whether measures can be taken in advance to avoid this situation. This may mean, for example, adapting the workplace or retraining the employee for a different job.

In order to receive a disability pension, an employee on sick leave must report to the IV office no later than six months after the onset of incapacity for work. However, the disability pension is only paid one year after the start of the incapacity for work if the employee is at least 40 % incapacitated for work and this incapacity for work is irreversible. The amount of the pension also depends on the number of years in which the employee concerned has paid into the disability insurance scheme.

In the event of pregnancy, employees are not entitled to sick leave, but to a special type of leave, namely maternity protection and maternity leave.

In Switzerland, employees, regardless of whether they work full-time or part-time, are entitled to 98 days (14 weeks) maternity leave after giving birth (Article 329f CO). Every woman is free to return to work after eight weeks of maternity leave. However, in order to be entitled to continued payment of salary during her maternity leave, the employee must have been insured with the AHV for the nine months prior to the birth and have been employed for at least five months during this period.

Tip: Fathers can also apply for up to two weeks' paid paternity leave as long as this is within six months of the birth of the child (Article 329g CO).

In addition, the pregnant woman can request continued payment of her salary if she is unable to work due to pregnancy-related complaints. This usually requires a medical certificate. If a woman is on sick leave at the time of the birth of her child, she can also apply for maternity benefit in addition to her continued payment of wages due to illness. The employer may not dismiss the employee during the entire pregnancy and up to 16 weeks after the birth. As always, you can contact a labour lawyer if you have any problems.