Absences and holidays: This applies to employees in Switzerland

Absence from work occurs when an employee is unable to fulfil their contractual obligations during working hours. The reasons for an employee's absence can be varied and do not always have to be voluntary. Examples include absence due to illness, accident, compulsory military service, birth, death, relocation, maternity leave (absence) and paid leave (holidays).

In the case of absences, a distinction must be made between justified and unjustified absences. On the one hand, in the case of involuntary absences, all reasons that are not attributable to the employee in question (be it force majeure, illness, caring for a sick child, etc.) are regarded as justification.

There is also a statutory entitlement to holidays, which is based on the duration of the previous employment relationship. In any case, paid and unpaid leave must always be reported to the employer immediately and may require a detailed or certified justification.

If an employee's absence is not sufficiently justified, they may be subject to disciplinary action and the employer is not obliged to pay their salary. However, if the absence is justified, the employer cannot take disciplinary measures and is obliged to pay the salary in accordance with the provisions of the Swiss Code of Obligations (CO).

Article 324a CO states that if the employee is absent through no fault of their own (for example due to illness, following an accident or to fulfil a legal obligation or public duty), the employer is obliged to continue to pay their salary for a limited period of time. 

However, this is only possible if the employee has worked for the employer for at least three months at the start of their absence. In addition, a collective agreement or standard employment contract may contain further provisions on the continued payment of wages in the event of absence. However, these provisions must at least fulfil the conditions described in the CO.

As a rule, when employees are absent, it is always checked whether the employee in question is entitled to continued payment of their salary despite their absence. If the absence is not justified, the employer can take disciplinary measures. In addition, if the absence is proven to be unjustified, the employee is not entitled to continued payment of salary during this period.

In principle, it is therefore particularly important in the case of health-related absences that the doctor who issues the certificate of incapacity for work formulates it truthfully and unambiguously.

If an employer has doubts about such a medical certificate, the employer can order a further medical examination by a medical examiner. Although employees can refuse this, this can lead to further conflicts and make their concerns less credible.

It is therefore good to know that medical examinations by a medical officer of trust are no different to a regular examination by your GP or specialist. Medical examiners are also subject to medical confidentiality and may only inform your employer about the degree of your incapacity for work and the general reason for your absence.

Duty to inform about absences

If an employee is absent without informing the employer, this is a breach of the employee's duty of loyalty (Article 321 CO). The employer must first check whether there is an important reason for the employee's absence. The employee must be contacted within the first few hours of the absence. If she cannot be contacted, the employer can decide on appropriate measures regarding her absence. This can range from a warning to dismissal without notice in the event of repeated absences.

The absence of employees, if it is not voluntary or due to paid holidays, can be justified by various reasons. The most common reasons for which employees are also entitled to continued payment of salary are as follows:

• Illness or accident: In such a case, the employee must provide the employer with a medical certificate to prove their incapacity for work. (Article 324a CO)
• Childcare leave: If the employee's child falls ill and the childcare centres and schools are unable to accept the child, the employee can take childcare leave. (Article 329i CO)
• Leave or absence for military service 
• Absence due to force majeure: This force majeure, which can be triggered by a weather event, for example, must not be attributable to the employee. 
• Leave for extracurricular youth activities: This leave is granted to employees under the age of 30 for the management or supervision of extracurricular youth activities. (Article 329e CO)
• Maternity leave: Maternity leave generally lasts until at least 14 weeks after the birth. (Article 329f CO)
• Paternity leave: Paternity leave of two weeks can be taken within six months of the birth of the child. (Article 329g CO)

The right to paid holidays exists for every employee and is enshrined in Article 329a CO, which states that employers must allow their employees at least four weeks' holiday per year of service and at least five weeks' holiday for employees up to the age of 20.

The holidays are intended to allow employees to relax and enjoy their free time while continuing to receive their full salary. It is therefore not possible to replace holidays with financial compensation, unless the employment contract is terminated prematurely by one of the parties and the employee has not yet exhausted their annual holiday entitlement (Article 329d CO).

How is the duration of holidays determined?  

As a rule, employees' holidays comprise at least two consecutive weeks (Article 329c CO) and must generally be taken during the current year of service. The timing of the holiday is determined by the employee's wishes, provided this is not contrary to the interests of the company. The employer must also give employees with school-age children the opportunity to take holidays during the school holidays.

To give employees the opportunity to enjoy their holiday to the full, the date of the holiday should generally be set early enough to allow them to make arrangements. The Federal Supreme Court considers a period of at least three months to be sufficient to give employees the opportunity to prepare for their holidays, although this period can be shortened at the employee's request. If the employer imposes holidays on an employee in a time frame that is too short for him, the employee is free to refuse the holidays. He must then notify his refusal as soon as possible and offer his services during this period.

Exceptional rights of the employer

However, it should be noted that the employer still has the right to impose the use of holidays during the period(s) in which the company is closed in a year. These periods must be justified by the company's activities and planned in such a way that employees can also make arrangements in advance.

In addition, an employer can also cancel an employee's holidays in exceptional cases. This requires unforeseeable and exceptional circumstances. Poor work planning or other absences, for example, are not acceptable reasons for an employer to cancel an employee's holiday. If the employee incurs costs as a result of the cancellation of the holiday, the employer is obliged to cover these costs.

What happens in the event of illness or an accident during holidays?

If an employee falls ill or has an accident while on holiday, a distinction must be made between incapacity for work and incapacity for holiday. For example, an employee may not be able to take advantage of her holidays due to illness during this exact period. This is usually the case with minor injuries, digestive disorders and pain, which are generally temporary.

Two criteria are therefore taken into account to determine whether an employee is unable to use their holiday:

• Permanence: if the discomfort lasts longer than two or three days, it can be considered as preventing the employee from taking their holiday.

• Intensity: The extent of the complaints prevents the employee from using or fulfilling the purpose of their holiday.

For example, employees are generally considered unfit for holiday if they fall ill or suffer an accident that leads to hospitalisation and/or complete immobilisation. Other reasons would be if employees suffer a nervous breakdown, if they are quarantined or if they suffer a physical injury that requires constant and prolonged medical care. In this case, the days of incapacity for work are not deducted from the holiday account. If you need help in asserting your rights, you can seek advice from a labour law attorney.