Under Swiss law, for an employee to receive their salary, they must perform their work. However, there are exceptions to this principle, such as Articles 324 et seq. of the Code of Obligations (CO), which deal with the remuneration of employees in cases of incapacity to work.
Initially, for an employee to receive their salary despite being unable to work (Art. 324a para. 1 CO), the following conditions must be met: (1) the employment contract must have been in effect for at least 3 months or has lasted more than 3 months; (2) there is an inability to work; (3) the inability is directly related to the person of the employee (e.g., illness, accident, legal obligation, death of a close relative, childcare for a sick child, etc.) and not due to external circumstances (e.g., traffic jams); (4) the inability is not attributable to a fault of the employee.
If these conditions are met, the employer must pay the employee's salary. The situation then depends on the existence of mandatory loss-of-earnings insurance.
Situation 1: Absence of Mandatory Loss-of-Earnings Insurance
Art. 324a CO addresses the case where the employee does not qualify for loss-of-earnings compensation from insurance. This situation pertains to all non-professional illnesses (e.g., COVID, flu, measles, depression, cancer, etc.) and all non-professional accidents, when the employee works less than 8 hours per week. In this case, as the insurance does not cover the inability, the employer must pay 100% of the salary for at least 3 weeks during the first year of service (for subsequent years, a specific scale applies). This creates a social coverage gap, as the employer can only pay the salary for a limited period and the employee cannot claim unemployment benefits because they are still employed. To address this issue, a derogatory collective agreement may be established, which we will discuss later.
Situation 2: Mandatory Loss-of-Earnings Insurance
Art. 324b CO deals with the case where the employee receives loss-of-earnings compensation from mandatory social insurance. This situation applies to all professional illnesses, professional accidents, and non-professional accidents, when the employee works more than 8 hours per week. In this case, since the insurance covers the inability, the employer only needs to supplement the insurance benefits up to 80% of the salary for a limited period. Additionally, the employer is required to pay 80% of the salary during any waiting period of the insurance.
Option for the Employer: The Collective Agreement
Employers have the option to choose a collective agreement to complement or deviate from the legal framework we have described.
If the employer agrees to a supplementary collective agreement, this means that additional protection beyond the legal framework will apply. This solution improves employee protection, especially regarding the social coverage gap mentioned earlier. Supplementary collective agreements are most commonly found in collective labor agreements (CLA), standard employment contracts (SEC), and company regulations.
If the employer chooses to contract a derogatory collective agreement (Art. 324a para. 4 CO), they can deviate from the legal framework by substituting an insurance coverage for the employer’s legal obligation to pay the salary. However, this option is only feasible if two cumulative conditions are met. First, the employee must receive benefits at least equivalent to those provided by law. Second, the employer can only contract a derogatory collective agreement if they comply with the qualified written form, for example, by including it in a CLA or SEC.
In summary, Swiss law provides clear provisions regarding salary in cases of incapacity to work (Art. 324 et seq. CO). Employees are entitled to their salary under certain conditions, with different implications depending on the presence of mandatory loss-of-earnings insurance. Employers also have the option to choose collective agreements to either supplement legal protection or deviate from it, subject to specific conditions.
If you need further information or support, please do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your needs.
Author: Caroline Bachelard
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