Continued payment of wages in the event of an accident: who is entitled to daily allowance and how much?

According to the Federal Act on the General Part of Social Insurance Law (ATSG), accidents are defined as sudden and unforeseen effects on a person's physical or mental health. They are caused by unusual external factors (Article 4 ATSG). The reason for absence from work as a result of an accident is therefore the person's own fault, but it is not their own fault.

In reality, the distinction is sometimes difficult to make. The factor that it must be an unusual incident is very important. If it is a normal risk or if the person concerned provoked the accident themselves, it cannot always be classed as an accident. Take the following two scenarios as an example:

You bite your tooth out in the canteen during your lunch break. One time it's an olive stone, another time it's a stone in the mashed potato.

While you should expect olives to contain stones, a stone in mashed potato is unusual. Although they are very similar situations, they can be categorised differently in legal terms.

A basic distinction can be made between two types of accidents: those that happen at work (occupational accidents) and others that happen during leisure time (non-occupational accidents). The Federal Law on Accident Insurance (UVG) specifies the types of accident as follows:

1. Occupational accidents

According to Article 7 UVG, occupational accidents are accidents that occur during working hours. Accidents during breaks or before and after the start and end of work are only classified in this category if the person concerned is on company premises. For part-time employees, incidents on the way to and from work also count as occupational accidents.

2. Non-occupational accidents

This category therefore includes all other types of accidents that cannot be categorised in the first group (Article 8 UVG). However, part-time employees are not insured.

3. Special form: Occupational diseases

A person suffers from an occupational disease due to certain conditions in their everyday working life. Harmful substances or the performance of certain activities are named as the cause (Article 9 UVG). Occupational diseases and harmful substances are specified in more detail in the Ordinance on Accident Insurance (UVV) (Annex 1 UVV).

An illness is defined as an impairment of physical, mental or psychological health and the resulting inability to work (Article 3 ATSG). An occupational illness is generally considered to be manifest as soon as the person concerned seeks medical treatment for the first time or becomes unfit for work. These are treated in the same way as occupational accidents (Article 9, paragraph 3 UVG).

In principle, accident insurance is compulsory in Switzerland. This means that all employees, including home workers, volunteers and interns, are insured in accordance with the law. There are exceptions, for example, for irregularly employed persons or relatives working with them (Article 1a UVG).

Whether a person is insured against an accident that does not occur at work depends on the workload. The average of the previous year is used as a basis. In general, eight hours per week is the lower limit for insurance entitlement.

Who is entitled to continued payment of wages?

Insured persons who become fully or partially unable to work due to an accident are entitled to the continued payment of wages or the so-called daily allowance. The entitlement arises on the third day after the accident. As soon as the person concerned is able to work again, the entitlement ceases and payment is stopped. There are exceptions if claims can be asserted on the basis of disability insurance or paternity or maternity insurance (Article 16 UVG).

The continued payment of wages is generally covered by compulsory accident insurance. If there is no insurance or if it does not apply, the employer is obliged to continue payment. If the insurance covers the continued payment of wages in the event of an accident, employers do not have to pay. However, this only applies if at least four-fifths or 80 % of the salary is covered by the insurance. Otherwise, the employer is obliged to pay the difference. Even if the insurance does not pay immediately and there is a waiting period, the employer is obliged to continue paying during this period. This is regulated in the Swiss Code of Obligations (CO) in Article 324b CO.

The CO describe the requirements that must be met for continued payment of salary:

• The incapacity is due to the employee.
• It must have occurred suddenly and through no fault of the employee.

This can be, for example, an accident, illness, the fulfilment of legal obligations or the performance of public duties. It must not be an event that has nothing directly to do with the employee (e.g. traffic jams, road closures or snow chaos). In these cases, the employer must pay the salary for a limited period of time and also pay "appropriate compensation for lost remuneration in kind" (Article 324a, paragraph 1 CO). This applies if the employment relationship has already existed for at least three months at the time of the accident (open-ended contract) or has been concluded for at least three months (fixed-term contract).

The amount of continued salary payment depends primarily on the employee's gross salary. If the person is fully incapacitated for work and is completely absent, they are entitled to 80 % of their salary. There are corresponding reductions for partial absences (Article 17 UVG). The basis for the calculation is the salary that the person concerned last received before the accident (Article 15, paragraph 2 UVG).

How long must the salary continue to be paid?

To determine how long you can expect your salary to continue to be paid after an accident, you should check the relevant contracts. In principle, the agreements that are determined by agreement, standard employment contract or collective employment contract apply. However, this only applies if they are more favourable to the employee, i.e. only if continued payment would be longer than legally required (Article 324a, paragraph 4 CO). This statutory period is at least three weeks for employment relationships lasting up to one year. The longer the employment relationship has existed, the longer the salary must continue to be paid - and for a reasonable period of time (Article 324a, paragraph 2 CO).

Basel, Berne and Zurich scale

The law does not specify exactly how long this reasonable period is. However, there are the so-called Zurich, Basel and Bern scales. Depending on the place of work, the scale valid in the respective canton is applied. The same reference points are also used for continued salary payments in the event of illness. In the first year of service, the period is three weeks everywhere. In the second year, it is one month on the Bernese scale, while in the other cantons two months of continued salary payments are due. In general, however, the differences are rather small. In principle, these provisions only apply once a year and several periods are added together.

When does the entitlement to continued salary payments begin?

If the accident insurance covers the continued payment of wages, the entitlement begins on the third day after the accident. The day of the accident itself is counted as a working day and must therefore be paid regularly by the employer (Article 16, paragraph 2 UVG). If your employer refuses to pay you compensation, you should contact a lawyer specialising in labour law.