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Sick leave is an incapacity to work due to illness, whether partial or total, regardless of its duration. It can be certified by a doctor by means of a medical certificate or it can be recognized by the sick employee simply notifying his or her employer.
In Switzerland, sick leave due to pregnancy is also considered as sickness.
How should sick leave be managed from an HR perspective?
It is best to specify the treatment of sick leave in a company regulation. The advantages of this are:
The right to salary and the procedure to be followed by the sick person are, among other things, provisions that should be mentioned in a company regulation. It is customary, for example, to ask the sick employee to inform his or her hierarchy and/or the HR manager without delay and to request a medical certificate only from the 4th day of absence.
The employer is free to decide on more or less flexible treatment in the event of illness, provided that it complies at least with the Code of Obligations (CO) and any collective bargaining agreements to which it is subject.
The possible reduction of holiday entitlement is also an important point to mention in a company regulation. Article 329b of the Swiss Code of Obligations (CO) provides that if an employee is prevented from working for more than one month in total during a year of service through his own fault, the employer may reduce his holiday entitlement by one twelfth for each full month of absence. This period is extended to two full months in the case of pregnancy.
Again, the employer may decide to be more generous and not make any reduction.
The sick employee's entitlement to salary generally depends on whether or not the employer has taken out daily sick pay insurance.
If the employer has not taken out insurance, Article 324a para. 2 of the Code of Obligations must be applied. It states that during the first year of service, provided the relationship has lasted more than 3 months, the employer pays the salary for 3 weeks. After the first year of service, the salary is paid for a longer period determined in a fair manner, taking into account the length of the employment relationship and the particular circumstances.
Due to the lack of precision in this article, payment scales have been developed. For example, the Bernese scale, which is often used in these situations, is as follows
*From the 20th year of service onwards, an additional month is granted for each additional 5 years of service.
If, on the other hand, the employer has decided to take out insurance, it must at least cover these benefits:
The employer can request better benefits such as a reimbursement of 90% or even 100% of the salary. Of course, the higher the coverage, the higher the premium.
Legal doctrine and the Federal Chancellery accept that the employee can recover holiday days if the incapacity occurs during holiday and the employee provides a dated medical certificate. (Carruzzo Philippe, Le contrat individuel de travail, Zurich 2009; Eric Cerrottini, Le droit aux vacances, Thèse Lausanne).
As there is still no Federal Court ruling on this issue, it is advisable to be cautious and pragmatic and to ask the employer to cancel the holiday days only if the pathology in all likelihood prevents the purpose of the holiday under the law, i.e. rest. For example, the fact that you cannot go abroad is not in itself a sufficient argument.
And conversely, can you take a holiday if you are off sick?
Here again, the answer cannot be limited to a yes or a no. The activity carried out during the holiday must be related to the pathology.
If taking a holiday while being unable to work due to depression does not seem to call into question the medical certificate, the same cannot be said for a skiing holiday when suffering from knee tendonitis.
In any case, we recommend that you always ask the insurer for prior authorization to avoid any disappointment caused by the cessation of daily allowance payments.
It is a common misconception that it is forbidden to dismiss a sick employee. This is not true. In fact, an employer has the right to dismiss an employee after having respected the following protection periods (art. 336c para. 1 CO):
These time limits are also void if the dismissal is immediate for just cause. There is also no protection during the trial period for fixed-term contracts or contracts concluded for a period of less than 3 months.
It should be noted that if the employer has taken out daily sickness benefit insurance, this will continue to pay benefits to the employee after the end of the employment relationship until the end of the 720 days and as long as the incapacity is recognized.
The number of short-term sickness absences can often be reduced by improving working conditions.
A link between absenteeism and well-being at work has been demonstrated for some years. A recognized and motivated employee with a good work-life balance, working for a respectful and caring company will be less absent than an employee with worse working conditions.
Similarly, if the employer is considerate, shows genuine empathy for employees who are absent for longer periods of time, and makes every effort to ensure their safe return, some sick leave can be significantly shortened. To help employers, many specialist companies offer corporate health management services. Do not hesitate to call on their services.
Sick leave is part of the employee life cycle. If it is well managed, handled with care and professionalism, it will be easier for both the employer and the employee.
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