If one's own child falls ill and both parents are gainfully employed, this can quickly lead to care bottlenecks. In principle, parents are entitled to 3 days off from work, whereby the continued payment of wages (or. the employer's obligation to continue to pay wages) remains in effect. But what about when children are "seen to be sick," namely when teachers send children home because they have a cough or cold??
Childcare
Childcare is a family duty, which is part of parental care. The arrangement of the care, whether financial or organizational (e.g. in the case of divorced parents), is left up to the parent providing care. Consequently, it is necessary to integrate child care into one's everyday life. Since this is highly individualized, it must be based on the individual case, which is why no further comments on this will be made under family law.
Under public law, however, the Labor Code grants employees with family obligations the right to up to three days off to care for sick children, provided a doctor's certificate is submitted (Art. 36 para. 3 ArG), which is based on Art. 328 OR should apply to all employees.
Continued payment of wages according to Art. 324a OR
The continued payment of wages is to be seen as an exception to the principle of "no work, no pay", since under certain conditions there is a right to wages, although the work performance is missing. The following conditions must be cumulatively fulfilled (explanations of the conditions can be found in the Contribution: Payment of wages in case of illness):
– Duration of employment (more than three months) – Subjective reasons – Lack of fault
Even in the case of childcare, the above conditions must be met in order to derive a wage claim. In principle, however, if the employment relationship is unlimited or lasts for more than three months, it can be amed that the childcare takes place for subjective reasons and without fault. The illness of the child is not to be qualified as a direct personal reason, since the parent is not (yet) ill himself/herself. However, childcare is part of the performance of a legal duty, at least until the child is 15 years old, which is why this is nevertheless to be understood as a personal reason. The absence of fault is also to be amed, since illnesses are usually not the fault of the employee, even more so in the case of children. Consequently, childcare, as the performance of a statutory duty (Art. 276 ZGB) is subject to the obligation to continue to pay wages according to Art. 324a OR.
Although the Labor Code only provides for a paid wage entitlement of 3 days (Art. 36 para. 3 ArG), the wage claim can last beyond these days, provided that the child must continue to be cared for and no outside care is possible. For example, the Bern High Court upheld the continued payment of wages for three months in connection with a mother who had to intensively care for her seriously ill, five-month-old child. A placement outside the home or. -The Higher Court did not consider the provision of care to be appropriate in the specific circumstances
There are also opinions that the 3 days off work (Art. 36 para. 3 ArG) and the associated continued payment of wages does not apply if the illness occurs during vacations or maternity leave. This opinion is to be rejected (so AppG BS in BJM 2009 S. 103).
To what extent is the salary owed if the parents have to take care of their children because the teacher does not want the child in class due to symptoms of illness?
Although the care of one's own children in particular is a legal duty, it does not always justify time off work, which is why the individual case must be taken into account, as will be shown below:
When a crèche remained closed due to the rampant swine flu virus and the mother therefore had to take over childcare herself and stay away from work, the Labor Court of Zurich considered this to be an epidemic-like situation and not a case of personal prevention from work, since the mother's own child was healthy (JAR 2011, 628). She was not entitled to continued payment of wages (Contribution Coronavirus School Closed – Employee's Wage Claim). However, it is important to differentiate according to the cause of the illness. After the official measures have been taken. Thus, the care of sick children by parents under 324a para. 1 OR (see above as well as the judgment of the labor court of Zurich in the Contribution Coronavirus school closed – wage claim of the employee).
If children are now sent home from school because of a cold, they are (possibly) not allowed to go to school. still) not ill. The question arises whether wages are still owed in this case, if an employee has to stay at home because of childcare (and also no simultaneous home office is possible).
The question to be answered is therefore what happens in the phase between sending the child home and potentially falling ill, because it is not certain that the child will actually fall ill. From a legal point of view, the above-mentioned conditions are still decisive. Here the subjective reasons are in the center of attention. These must affect the employee directly. If consequently the teacher sends a child home from class, this may well be understood as subjective concern in the individual case, due to the perception of the child care of the individual child. Thus, the continued payment of wages would be given. If whole classes are sent home, we quickly find ourselves in the objective impossibility and – if one follows the current case law (AGer ZH) – the employee has to bear the wage risk. This would be a so-called supra-personal reason, since individual parents would be directly affected, but the circle of persons would be wide (for the demarcation, see also the contribution concerning the Natural disasters).
If a child is sent home only because of a cold, it is necessary to find out during the first 2-3 days whether there is an illness or not. According to the opinion represented here, the employer's obligation to continue to pay wages should be given during this time. The 3-day rule (of the Labor Code; Art. 36 para. 3 ArG) should therefore also apply in the case of a child with a cold, provided that the child is not allowed back to school and no third-party care can be ensured, even if the child does not fall ill.
The entitlement to wages can (according to the opinion represented here) also last beyond these days, provided that the child must be cared for further and no outside care is possible. In contrast to sick children, however, this should be rather rare, since third party care should be more possible, although the individual case must be taken into account.