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Notice period in cases of illness: Blocking periods and continued salary

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You are given notice of termination at work and you break your leg during the notice period. Or you suffer from a stomach problem. Here you'll discover the most important points about becoming ill while on notice.   

If you give notice yourself and fall ill during the notice period, the period is not extended. However, this changes if you are given notice of termination: If, during the notice period, you fall ill or suffer an accident, the notice period is interrupted during your incapacity for work, but not beyond the expiry of the statutory blocking period. The notice period subsequently resumes. 

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    Notice periods SCO

    The statutory notice periods are governed in the SCO (Art. 335 ff). During the probation period, the notice period amounts to seven days, in the 1st year one month, in the 2nd to 9th year two months, and 3 months thereafter. These periods can be changed in a written standard employment contract (NAV) or collective labor agreement (GAV). However, they may only be reduced to less than one month in a collective labor agreement and only in the 1st year.

Blocking periods

Article 336c para. 1b of the Swiss Code of Obligations (SCO) stipulates blocking periods that represent a limitation of notice period freedom. The purpose of this Article is to protect the employee from the loss of work at a time when he or she has barely a chance of finding work and would not be employed by a new employer due to their illness or accident.

However, this  protection only enters into force following expiry of the probation period and amounts to 30 days in the first year, 90 days from the 2nd to 5th year, and 180 days from the 6th year. The decisive factor is that the employee is not "merely" ill, but is also incapable of working ; in other words, incapable of carrying out the contractually due work.

When the incapacity for work ends, so does the blocking period, even if it has not yet expired under the law.

Medical certificate

In accordance with the general burden-of-proof rule under Art. 8 Swiss Civil Code, employees must supply proof of their illness-based incapacity for work, usually by means of a medical certificate. If the employer has a justified reason to doubt the genuineness of the submitted medical certificate, he may – even without a corresponding contractual basis – demand the employee attend a medical examination by a medical expert.

Notice of termination during illness

Notice of termination given during a period of incapacity for work is null and void and must be reissued following the end of the period of incapacity for work. In contrast, notice of termination may be issued during incapacity for work in the probation period.

Repeatedly ill

If you are sick on multiple occasions during the period of notice, what matters is whether you are sick for the same reason. If you break a leg and catch influenza at a later time, the blocking periods are cumulated. However, this does not apply if the second period of incapacity for work occurs in the extended period according to Art. 336c para. 3 SCO.

Neither a relapse nor the consequences of your illness trigger a new blocking period. However, in the event of a relapse, you are permitted to use up the remainder of the blocking period that you have not yet fully exhausted.

 

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    Practical example of a notice period

    In May 2019, the 9th month of his employment, Mr. Leutenegger is given notice of termination with a notice period of one month to the end of June 2019. He suffers from influenza from June 1-21, 2019 and sprains his leg on June 15, 2019, from when he remains unfit for work until July 31, 2019. The initial blocking period runs from June 1-21, 2019, meaning the notice period is suspended for 21 days. The sprained leg and the initial illness, the influenza, overlap. The second blocking period of 30 days runs from June 15 for 30 days. Hence, the employment relationship ends at the end of August 2019.

Continued payment of salary

If nothing else has been agreed and the employer has not taken out daily sickness benefits insurance, Art. 324a para. 1 SCO applies in case of illness: 100 percent continued payment of salary for a limited period. The employer must pay the full "salary plus an appropriate payment for the missing payment in kind" under the above conditions for a "limited period" provided the employment relationship has lasted more than three months.

Duration of the payment

The "limited period" is determined according to the number of years of employment, including the probation period and the occupational training in the company. In the first year of employment, the obligation to continue salary payments amounts to three weeks. For the remaining years of employment, scales are used that have been derived from theory and legal practice. These scales vary according to region (Bern/Zurich/Basel scales).

The obligation to continue salary payments according to Art. 324a para. 1 SCO applies per year of employment. In each year of employment, a new obligation to continue salary payments arises, including during ongoing illness, provided the employment relationship has not ended.

 

"I recommend taking out group daily benefits insurance to cover absences due to illness. It generally covers at least 80% of the loss of earnings for a period of 720 days. Your employer must pay at least 50% of the premiums."

Carole Kaufmann, lawyer

Daily benefits insurance

If the employment contract, the standard employment contract, or the collective labor agreement provides for daily sickness benefits insurance, the continued payment of salary differs. It is nevertheless a requirement that this regulation is of at least equal value for the employee. This is governed under Art. 324a para. 4 SCO.

Continued payment of salary of equal value

A continued payment of salary regulation is deemed to be of equal value to daily sickness benefits insurance if it contains the following characteristics:

  • 80% continued payment of salary for 720 days in a period of 900 consecutive days
  • at least 50% of the premium is paid by the employer 
  • a maximum waiting period of 3 days, i.e. days when no continued salary payment is made at the start of each period of illness
  • The waiting period prior to the granting of insurance benefits can vary since the employer is obligated to continue to pay the salary during this period. Waiting periods of 30, 60 or 90 days are generally agreed.

80 percent continued payment of salary

For incapacity for work (or for waiting periods from day 4 at the latest), the continued salary payment amounts to 80 percent. Following the waiting period, the continued salary payment by the employer is replaced by the insurance benefits in the amount of 80 percent of the current salary.

Important: Protection against dismissal and the obligation to continue salary payments are entirely separate matters. For example, the employment relationship can be extended by 90 days due to the blocking period, whereas your employer's obligation to continue salary payments can end after just a few weeks.

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    Practical example of continued salary payment

    Ms. Gysi was given notice of termination in February 2019 with a notice period of two months to the end of April 2019. She fell ill on February 3, 2019 and will not recover before the end of August 2019. Ms. Gysi's salary is still payable until the end of March 2019 (eight weeks), after which she is no longer entitled to a salary, although her employment relationship continues due to the extended notice period.

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