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Sick while on vacation – when are you entitled to reclaim lost vacation days?

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The law states that employees are supposed to use their vacation to relax and recuperate. But what if you spend several days sick in bed and miss out on your beach vacation in Sardinia? Or you break your ankle and have to cut your skiing vacation in the Dolomite mountains short? We will explain when employees are deemed “incapable of vacationing” and can reclaim the vacation days they were unable to use, and in which cases they are not. 

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    Leo Loosli

    Leo Loosli is a legal expert and works at AXA-ARAG in Market Management and as an expert in the areas of contract, inheritance, family and personal law.

My boss says that as team leader I have to always be reachable when I’m on vacation. Are they allowed to do this?

The trend towards constant availability is not compatible with the intention of the legislature or the duty of care incumbent on employers. The whole idea is for you to spend time relaxing on your vacation so that over the long term you remain healthy and fit for work.

If your employer expects you to be reachable from morning to evening, then those days cannot be considered vacation days. They are considered working hours, which means that you can take your vacation time at a later date. The reason is that when you are constantly on call, you cannot fully relax.

This rule also applies in principle if you are in a management or senior management position.

My employer will close down the company for two weeks this summer for vacation. Will these days be deducted from my annual vacation entitlement? 

According to the law, your employer is responsible for determining when the company will close for vacation. But they must also take your needs into account. You must have the ability to take your vacation on a regular basis. Mandatory company vacation does not run counter to the duty to take account of employee needs, however. If your employer closes down for vacation, then this must be explicitly stated in your employment contract or be announced in good time, i.e. at least three months in advance.

Since, in addition to the company vacation, your employer must give you the opportunity to take your personal vacation when you like, they cannot require the company to close for vacation four or five weeks a year. But two weeks of company vacation is permitted.

Is my company allowed to terminate any unused vacation days at the end of the year?

No. Any unused vacation days that remain at the end of the year cannot be taken away from you. And any agreements or clauses in your employment contract that provide for the forfeiture of unused vacation time are also prohibited. Unused vacation time at the end of the year must be rolled over to the next year.

What you do need to consider, though, is the legal limitation. There is a five-year cap on vacation time. In other words, if you do not take a vacation for a long time, your entitlement to vacation may be forfeited or your company may enforce a statute of limitations. However, when you do go on vacation, this time will be deducted from your oldest vacation entitlement.

«As a rule of thumb: When you are unable to work, it normally also means you are unable to go on vacation, but the inability to work does not automatically imply an inability to vacation. And conversely, not being able to go on vacation does not necessarily mean you cannot work.»

Leo Loosli, Legal Expert at AXA-ARAG

Inability to work vs. inability to vacation

Not being able to work is not the same as not being able to vacation.

Inability to work is the full or partial inability on account of physical, mental or psychological health problems to perform any reasonable function in your current profession or field of work. In other words,  you have a medical condition which prevents you from partially or fully performing your regular job.

Inability to vacation occurs if you become sick or have an accident that prevents you from relaxing during your vacation. Your health must be considerably impaired and the condition must be rather serious. For example, you must be so sick that you have to stay in bed and visit the doctor regularly. A lesser injury which does not force you to stay home or does not seriously impede your ability to take part in other activities during vacation does not detract from the quality of relaxation. Such conditions include, for instance, physical discomfort, headaches, sniffles, minor toothache, a sprained ankle, a broken finger or sunburn. 

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I planned to go on a three-week tour of the US with my partner. The flight and most hotel stays have already been paid – but I didn’t buy travel cancellation insurance. Now my employer has said that no one is allowed to go on vacation during this time for four weeks. Who bears the costs?

Your employer is responsible for administering company vacations. Once they have approved your vacation, though, they can’t simply take it back again.

According to the law, there must be important reasons for doing so: The burden of proof lies with your employer. The following are considered to be important reasons: unforeseen and urgent company needs. In other words, there must be some kind of emergency.

Poor planning on the part of your employer is not an emergency, such as if they approved vacation for employees without first checking to see if this created problems.

In practice, if an actual emergency exists, and your employer invokes their legal right to cancel employee vacations, they must pay for any costs that arise, such as cancellation and rebooking fees.

The same applies to vacation recalls. This is when you are already on vacation and your employer insists that you return to work. 

I sprained my ankle on a beach vacation on Crete. Despite the fact that I have a doctor’s note, my employer wants to deduct these days from my paid leave allowance. They say that I was still able to relax. Is this legal?

The fact is that being unable to work is not the same as being unable to vacation (see detailed explanation in the box above).

A sprained ankle does not usually require complete bed rest or regular trips to the doctor. It is considered to be a lesser limitation that does not significantly impair your ability to relax on your vacation. For this reason, your employer does have the right to deduct these days from your paid leave allowance.

«If you get sick or have an accident on vacation, you must inform you employer immediately or send them a doctor’s note.»

Leo Loosli, Legal Expert at AXA-ARAG

My employer wants to deduct five days of my sick leave from my salary for the time I was on vacation because I didn’t submit a doctor's note until after I returned from vacation. Is there anything I can do about that?

Here are the key points: In this case your employer is not entitled to simply deduct this from your salary. In the worst case, you will not receive any vacation leave for your five sick days, i.e. the days you were sick will be counted against your vacation leave.

Whether your employer is able to deny you vacation days because you submitted your doctor’s note late, depends largely on the individual situation. Strictly speaking, employees must inform their manager that they are unable to work / take vacation even when they are on vacation – and submit a doctor’s note.

Here, the rule of thumb is the earlier, the better. If the time in question is the last two days of a one-week absence and the doctor’s note is submitted directly thereafter, your employer has no right to refuse. The longer you take to submit your doctor’s note after you become sick, the more likely it is that your employer will say that the note was submitted too late.

If your employer refuses to accept a doctor’s note that you submitted promptly, then you will have to take legal action.

So we recommend that you notify your employer immediately and submit a doctor’s note as soon as possible.

I got blood poisoning while on vacation and was in the hospital for three days, so now I would like to extend my vacation by three days. Can my employer refuse to grant the extension?

Yes. If you are unable to vacation, then you are entitled to receive three days of vacation as compensation. But you cannot simply extend your vacation without first discussing it with your employer.

Your employer has the right to determine when you take your vacation days, and so has the right to refuse to extend your vacation if that is not in the company’s interests. However, your employer must give you the three days off at a later date. 

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During a bike tour through Vietnam, I spent several days in bed with a fever. There was no clinic or hospital nearby. My boss does not want to credit me the vacation days without a doctor’s note.

The burden of proof of being sick on vacation lies with the employee. This means you must provide the proof. A doctor’s note, for instance, is one good form of proof. But employees can use other ways to prove that they were unable to vacation.

There are some things to note when providing a doctor’s note. As a rule, a doctor’s note only proves that you are unable to work. As we explained above, being unable to work does not necessarily mean you are unable to vacation. So you need to make sure that the doctor – provided this applies from a medical perspective – also certifies that you are unable to vacation or that your illness prevented you from pursuing the purpose of your vacation. Whether the note is prepared by a doctor in Switzerland or abroad, has no impact on its value as proof.

In your case, it will be difficult to prove that you were actually unable to vacation. If your boss insists on a doctor’s note and you do not have any other way to prove that you were sick, then your boss does not have to grant you the three days.

«Doctor’s notes written abroad have the same value as evidence as doctor's notes written in Switzerland. Even if they are written in the language of the country you visited.»

Leo Loosli, Legal Expert at AXA-ARAG

I got a stomach bug on vacation in Costa Rica that laid me low for five days. But my boss won’t accept a foreign doctor’s note. What can I do?

Doctor's notes from another country have the same value as evidence as doctor’s notes from Switzerland. As long as the note explains that you were unable to vacation or that you were not able to use your vacation time as intended, then your boss must grant you the five days.

If your boss does not accept your doctor’s note, then you will have to take legal action if you cannot reach an amicable solution.

In such situations, we recommend you first talk with your boss. Maybe all you need to do is make a few small inquiries in order to avoid a legal battle. What you could do, for example, is to release the doctor from their duty of confidentiality and give your boss permission to talk to your doctor directly.  

My flight from Madeira to Zurich was canceled due to strong winds and I wasn’t able to fly until a day later. My boss wants to deduct this lost day of work from my salary. Can they do that?

The deciding factor here is the reason behind your late return.

If you were prevented from performing your job, your boss is only required to pay your salary if the reason is attributable to you personally, i.e. you were sick or had an accident.

If you were prevented by external circumstances, such as force majeure, traffic jams, natural catastrophes, blocked train tracks, canceled flights and the like, your boss is entitled to reduce your salary accordingly.

In short, in your case your boss has the right to deduct your lost day of work from your salary.

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I would like to work at a cabin in the mountains for four weeks this summer. I will be paid a small salary for this work. Do I have to tell my employer – and do they have the right to forbid me from doing this?

Whether it’s okay for you to work a little side hustle during your vacation depends largely on the individual case and the actual circumstances As we mentioned before, the purpose of a vacation is to relax so that you are able to maintain your ability to work over the long term.

If you work during your vacation and put the interests of your employer at risk, which can happen particularly if there are competing factors for your time during your vacation, which may mean it is prevented from achieving its intended purpose, then your employer is entitled to refuse to pay your salary during this time.

Under the law, however, the aim of relaxing during vacation is not called into question per se if you take on paid work for third parties. If you have an office job and you work at a cabin in the mountains or repair a hiking trail during your vacation, this is generally not seen as violating the above rule.

Even though you are not required to do so by law, we still recommend that you inform your employer of your plans beforehand.

I have been given medical leave to work only part-time (50 percent) due to a back injury and I would like to take two weeks off this summer. In this case, will I have to take five or ten days of my vacation?

You are either able to go on vacation or you are not. Despite the fact that you are only working 50 percent, any days you take off work will still need to be charged in full, not at your reduced employment level. This means you will have to use up 10 paid days of your vacation leave, not just five.

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I've been off sick for several weeks. Can I still take a vacation? 

That depends on the situation. Not being able to work is not the same thing as not being able to vacation (see info in the gray box above). It is possible for you to be unable to work, but perfectly capable of going on vacation. The decisive factor here is whether your illness stands in the way of your being able to relax on your vacation or not.

If you are bedridden, obviously you cannot work or go on vacation. However, if you are a pianist or a tailor and you’ve badly burned your hands, clearly you are not able to work, but there’s no reason why you couldn’t go on vacation. So in this case, being unable to work does not mean being unable to vacation.

Note: You are either able to go on vacation or you are not. If you only work part-time (50 percent) due to an illness and you go on vacation, you will have to take the full number of days off and not just half of this amount.

If you are not sure, we recommend you ask your doctor for advice. If your doctor gives you the go ahead despite being unable to work, then you can take a vacation.

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