Inability to work due to health reasons or an accident often raises questions for both employers and employees. How can abuses be prevented? What are the obligations of each party, and how can they be managed effectively? Here’s an explanation.
The annual duration of absences due to illness or accident per workplace in Switzerland has increased in recent years, rising from 44.3 hours in 2010 to 65.7 hours in 2022. During a period of incapacity to work in Switzerland, employees are protected for a certain period of time from ordinary dismissal. However, they are still obligated to maintain loyalty and diligence towards their employer.
In the event of an absence, the first step is to determine the reason (occupational accident, non-occupational accident, illness, etc.) and the likely duration of the stoppage. Often, a medical certificate will be required, which allows the employer to understand the situation and take the necessary measures. "The next step is to assess the legal and financial consequences of the absence," explains Matthias Meier, a lawyer at Bachmann Rechtsanwälte in Zurich. "This includes determining whether an insurance policy (e.g., daily allowance insurance for illness or accident) provides benefits or if the salary must be maintained."
The Duty of Loyalty
In principle, an employee who is unable to work has the same obligations of loyalty and diligence as an employee who is fit to work. This means, for example, that they must continue to act in the employer's interest and cannot work for a competing company. The principle that no salary is paid without work performed also applies. Therefore, the employee must prove their inability to work, typically through the aforementioned medical certificate.
A common breach of this duty of loyalty occurs when an employee, despite being certified as unable to work, engages in another professional activity (especially during a prolonged sick leave period and/or during the notice period) or goes on vacation and jeopardizes his recovery. "In such cases, it is important to immediately determine whether these actions are permitted. It all depends on the specific circumstances, particularly the reason and extent of the incapacity to work."
Diligence and Proportionality
When a breach of the duty of loyalty is suspected, the first step is to arrange a meeting with the person involved. The employer may also conduct an internal investigation. In all cases, the principle of proportionality must be respected during the procedure. Common measures include ordering a medical examination by a company doctor, analyzing email correspondence, or interviewing colleagues, says the lawyer. However, the employer must exercise caution, particularly with electronic evaluations, to respect employees' privacy rights. Evidence obtained improperly may be dismissed.
If the employer has well-founded doubts about the accuracy of a medical certificate, they can, provided it is stipulated in the employment contract or company regulations, require the employee to see a company doctor. The costs of such an examination will be borne by the employer.
It should be noted that the company doctor is bound by medical confidentiality. "This means that the doctor can only say whether and to what extent there is incapacity for work, how long it is likely to last and whether it is due to an accident or illness", explains Suva, one of Switzerland's main accident insurers. "Employees cannot be forced to undergo such an examination. However, if an employee refuses to see a company doctor when the request is objectively justified, they can, in principle, be considered fit for work and lose their right to continued salary payments."
When a violation of duty is confirmed, the chosen sanction must be proportional to the misconduct of the person involved. "For a minor breach of the duty of loyalty, a warning may suffice," explains Suva. Other sanctions can be considered, including a formal warning, or, ultimately, dismissal. For example, if the employee does not resume work after regaining full or partial capacity, this may, under certain circumstances, justify immediate dismissal. In some cases, the individual may also be required to pay damages.
"It is essential to clarify the facts and not act impulsively," emphasizes lawyer Matthias Meier. "It is also crucial to address such cases immediately rather than letting them drag on for days or weeks, as this can limit possible actions and increase the potential for damage." This is particularly relevant when immediate dismissal is a possible measure. "However, I recommend seeking legal advice before proceeding with immediate dismissal, as compensation is generally required if the dismissal is found to be unjustified."
"Mutual understanding is generally greater when there is open communication between the parties," concludes Suva. "In the event of a dispute, comprehensive written documentation is essential from a labor law perspective. Therefore, it is recommended to communicate in writing in delicate situations."
Informations
On the theme
Cases of occupational accidents and illnesses remain stable
Last year, companies insured with Suva reported approximately 494,000 occupational accidents and illnesses, a 0.3% increase compared to the previous year. Specifically, the insurer recorded over 186,000 cases of occupational accidents and illnesses, 292,000 cases of leisure accidents, and over 15,000 cases involving individuals registered as unemployed or participating in Disability Insurance programs.
Last modification 02.09.2024
