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

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 expiration of the statutory blocking period. The notice period subsequently resumes. 

For example, it may be the case for employment contracts that can only be terminated at the end of the month that an illness-related absence (within the notice period) of only one day would cause the notice period to be extended by an entire month.

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.

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.

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.