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Accident or long-term illness: What does this mean for my job?

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An accident, operation, or serious illness can happen to anyone. They usually occur suddenly and have far-reaching consequences for your work circumstances. Will I still get paid? Can I be fired despite having a medical certificate? Will my illness appear in my job reference?

Alexandra Gwerder  and Carole Kaufmann Ryan, lawyers at AXA-ARAG, answer key labor legislation and financial questions concerning incapacity to work due to illness.

I was sick for four months. Shortly after that I was fired, even though my appraisals were always outstanding. Is my employer acting within his rights? 

 In Swiss labor legislation, the principle of freedom of termination applies. An employment contract can be terminated by either party at any time – with just a few exceptions. There does not need to be a valid reason or any prior warning.

You need to check whether the termination could have been wrongful. A termination is wrongful if, for example, you are dismissed due to a personal trait such as age, gender, nationality, or marital status. 

When can my employer demand a medical certificate?

You employer can demand a medical certificate from your first day of illness, unless your contract of employment or employee regulations state otherwise. 

Does the medical certificate have to give the reason for me being signed off?

No. However, the medical certificate must provide information on the commencement, duration, and degree of incapacity – and whether it relates to an illness or an accident. 

If I’m sick, does my employer have to carry on paying my salary – and for how long?

If nothing has been agreed to the contrary and your employer has not taken out daily sickness benefits insurance, in the event of illness: 100% of your salary will continue to be paid for a limited period of time. The same provisions apply for other instances of incapacity to work that are not subject to mandatory insurance cover. In such cases, the employer must pay the full “salary including appropriate remuneration for any loss of payment in kind” for a “limited period”, subject to the aforementioned conditions.

Calculating the continued salary

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).

Important to know: The obligation to continue salary payments 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.

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Are employers allowed to enquire about pre-existing health conditions at job interviews?

Employers are only allowed to ask questions that are directly related to your professional duties. So you can lie if you are asked at a job interview whether you have previously had a serious illness. That is none of the employer's business.

Exceptions: If the personal questions are directly related to your professional duties, you have to tell the truth. For example, nurses must inform their employer about infectious diseases. And a ballet teacher cannot withhold the fact that she is pregnant, as physical fitness is crucial for her job.

Is long-term sickness automatically reported to disability insurance (IV)?

No. To obtain disability insurance benefits, you need to register using an official form. 

If you undertake casual part-time work, you are also entitled to be paid if you are sick.

Carole Kaufmann Ryan, lawyer at AXA-ARAG

My child is seriously ill. Am I entitled to time off if I cannot arrange child care?

The law states that: if a child is ill or has had an accident and needs care, the father or mother can stay away from work for up to three days to look after it. This applies for each case, in other words, for each new illness and for each individual child. According to labor law, you must submit a medical certificate; this regulation only applies to children up to 15 years of age. If both parents  are working, they can share the care so that the absences do not all accumulate for one parent.

Caring for children long-term

If the three days provided for in law are insufficient and a doctor confirms that a parent is urgently needed at their child's bedside, employed parents may exceptionally remain absent from work for longer. For example, the parents of a child suffering from leukemia were able to take turns looking after her in hospital for two months and still get paid. However, in cases of chronic ailments or time-consuming treatment, it is recommended that you seek an alternative solution with your employer. Too many absences could lead to your dismissal.

My boss wants to reduce my holiday entitlement because I was sick for five weeks. Can she do that?

If you are wholly or partly unfit for work due to an accident or illness, you can expect to have your holiday entitlement reduced, but only in the case of a long absence. For example, if you are wholly unfit for work, a grace period of one month is applicable. During this time, your holiday entitlement cannot be reduced. After this grace period, your employer can reduce your holiday entitlement by a twelfth for each successive whole month of absence. Part months are not taken into account.

Calendar month vs working month

Important information to be noted: The months referred to here are not calendar months but working months. Only working days count when calculating incapacity for work. If you are working a five-day week full time, one month has an average of 21.75 working days, and this is the figure that the courts use. Once someone has been off work for 21.75 working days, this is treated as a full month's absence. Because holiday entitlement can only be reduced from the second full month onwards, you would have had to be ill for at least 45 working days (2 x 21.75 days). After this time, you would need to be absent for a further 21.75 days before a further reduction could be imposed. 

Important:  Employees are entitled to a new grace period at the start of each new year of service. 

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When does accident insurance (Suva) pay, and when does health insurance pay? And what difference does it make to me who covers the costs?

Damage to health that is not the result of an accident is classed as an illness. That means that the costs for treating the illness are covered by health insurance companies. But since accident insurance benefits are better, there's a significant incentive to get damage to health recognized as an accident.

When is damage to health classed as an accident?

An accident is a sudden, unintended detrimental effect from an unusual external factor on the human body that results in physical, mental, or psychological impairment to health, or in death. Occupational diseases are also treated as accidents if it is proved that the disease was exclusively or very predominantly (more than 75%) caused by professional activities.

The following physical injuries are also listed in law and are therefore considered to be accidents: broken bones, luxations, ruptured meniscus, ruptured or torn muscles, ruptured ligaments, and injuries of the eardrum. 

It is mandatory for all gainfully employed people in Switzerland to be insured against the consequences of occupational accidents and diseases. Unemployed people are automatically insured by Suva. People not in gainful employment do not have accident insurance cover.

Alexandra Gwerder, lawyer at AXA-ARAG

Who decides whether it's an accident?

The accident insurance provider decides whether the preconditions for an accident have been met and whether there is an entitlement to accident insurance benefits. If they decline to provide benefits, the insured person and also the health insurer can appeal. Employees in some sectors are insured by SUVA. In all other sectors, the employer selects an approved private insurance company.

I do acrobatic cycling in my spare time. Can my employer demand that I give up this hobby?

Employers cannot stipulate what employees can do in their free time.

This said: If you have an accident due to your hobby, there's a risk that your accident insurance benefits may be reduced. If you intentionally cause an accident, you will not receive any accident insurance benefits. Negligence can lead to massive reductions too. Accident insurance companies can also withhold or reduce benefits in the case of extraordinary risks or acts of daring.

Reduced benefits for high-risk sports

Extraordinary risks and hazardous activities (or acts of daring) are risks that significantly exceed those encountered in normal everyday life. According to the Federal Supreme Court, this is the case for base jumping, competitive boxing, and downhill biking, for example. Cycling acrobatics (such as jumps, rotating about your own axis, taking your hands off the handlebars, or removing your feet from the pedals) are also classed as hazardous activities (i.e., as acts of daring). If you have an accident while doing such moves, there’s a risk that financial benefits may be reduced. In particularly serious cases, financial benefits may be withheld entirely.

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