Introduction
Performance obstacles
Blamelessness
Employment contracts
Duration
Medical certificates
Medical officers


Introduction

The basic rule 'no wages without work' dictates that employees who perform no work, including those deemed incapable of working, should not receive wages. However, Swiss employment law provides for exceptions in some circumstances.

This article addresses:

  • the circumstances in which employers must continue to pay employees who are unable to work;
  • how long employers must continue to pay such employees; and
  • the circumstances in which employers may request a medical certificate.

Performance obstacles

Employees must justify any work absences. Under Swiss employment law, salary continuation is permitted if work is prevented due to:

  • illness;
  • accident;
  • pregnancy;
  • a legal obligation; or
  • an exercise of public office.

Salary continuation is also permitted in circumstances not provided for by law, including:

  • marriage;
  • the birth of a child; or
  • the death of a close relative or housemate.

The extent to which such circumstances can be considered leisure time depends on work performance being possible and reasonable, such that a claim for salary continuation would be unjustifiable.

Objective obstacles to performance (ie, events that affect large groups of people) may fall within employees' sphere of risk. For example, in Spring 2010 a volcanic eruption closed the entire European airspace, preventing many people from flying home and returning to their jobs. However, the law applies differently to aviation company employees who fly abroad in the course of their professional activities and become trapped due to an airspace restriction. As such special circumstances fall within an employer's sphere of risk, it would have to continue wage payments.

Blamelessness

Salary continuation laws also assume that an absence is not an employee's fault (unlike obvious misconduct, slight faults do not harm employees). Employees involved in traffic or sports accidents are generally regarded as blameless; however, if an employee is drunk or otherwise incapable of driving, the law considers them guilty. Employees involved in sports accidents (even risky sports) are regarded as blameless unless their employer can prove gross negligence on their part. Gross negligence would include:

  • skiing in closed-off areas despite a high likelihood of avalanches;
  • mountain ascents despite weather warnings; or
  • performing high-risk sports with inadequate equipment.

Employment contracts

Employers must continue to pay wages if the employment relationship has lasted for more than three months or has been concluded for more than three months. If there is no daily sickness benefit insurance and nothing to the contrary is agreed in the employment contract or in the collective employment contract, continued payment of wages shall apply from the first day of the fourth month of employment in the case of indefinite employment relationships. In the case of fixed-term employment relationships concluded for more than three months, the rules on continued payment of wages apply from the first day.

Duration

Under Swiss labour law, during the first year of service, employers providing salary continuation must pay employees their standard wages – including allowances, commission and any lost wages in kind – for at least three weeks and for a reasonable period thereafter, which may be extended by an individual agreement, a collective agreement or a normal contract of employment.

After the first year of service, the salary continuation scales developed by the cantonal courts of Berne, Zurich and Basel apply. However, these scales are not absolutely binding for courts and have led to different cantonal regulations; the Berne scale is considered the most significant in this regard. Although these scales strongly influence court practice and are advantageous in terms of legal certainty, they are not always applicable. The law requires judges to assess all circumstances.

Medical certificates

The burden of proving that an employee is unable to work due to illness or accident lies with the employee and a medical certificate is required in most cases. However, neither the Code of Obligations, the Labour Code nor any related ordinances include the term 'medical certificate'. It is only regarded as a so-called 'party assertion', which means that it has no absolute evidential value. Employers can invalidate medical certificates at any time with further evidence.

In practice, medical certificates are usually issued in writing and must evidence the date on which the incapacity to work started and how long it will last. It must also detail whether the incapacity to work is complete or partial.

Employers only receive information from medical officers concerning employees' ability to work and not medical diagnoses. Even in cases of verbal enquiries by employers, doctors cannot provide any information regarding incapacity to work without the employee's consent, lest they violate employees' personal rights and doctors' duty of confidentiality.

There is no legal requirement for when a medical certificate must be presented; however, they are typically required from the third day of absence, which in practice is often regulated in the employment contract or in personnel regulations.

Medical officers

The basis for ordering an examination by the employer's medical officer is derived from an employee's duty of loyalty according to doctrine and case law. However, in order for a medical examination to be performed:

  • the employee must be generally absent for health reasons;
  • proof of incapacity to work must already exist (eg, a doctor's certificate);
  • objective indications must call into question the employee's incapacity to work; and
  • the measure must be proportionate.

Objective indications which make the employer doubt the correctness of the medical certificate are affirmed in the following case constellations:

  • formal and material deficiencies (eg, certificates which are unreadable or excessively backdated);
  • employee behaviour (eg, when an employee on sick leave due to knee pain is observed repairing their roof at home);
  • doctor behaviour (eg, if the doctor makes derogatory remarks about the employer on the certificate); and
  • time, frequency and duration of the incapacity to work (eg, if the employee falls ill at exactly the time at which holiday entitlement was refused at the desired time).

If two doctor's certificates (eg, one from a family doctor and one from a medical examiner) contradict each other, the courts will focus on the more qualified one. For example, a Lucerne Labour Court decision considered a medical examiner's opinion to be less than objective and based its findings instead on the conclusions of a family doctor, who had repeatedly examined the employee in question. Further, the courts may have their own medical findings drawn up and are free to assess medical certificates.

In practice, the question arises as to whether an examination by a medical examiner may also be ordered at a later date. It is doubtful whether a medical examiner can confirm the employee's incapacity to work (eg, after one month from the date of sick leave). Employers are advised to request this promptly, otherwise the probative value of the medical examination will fall.

For further information on this topic please contact Hasret Mutlu at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.