Obligation to continue to pay wages in case of illness : RequirementsThe practical handling of the obligation to continue to pay wages always presents difficulties, especially when the parties have agreed on a benefit from a daily sickness benefits insurance instead of the employer's obligation to continue to pay wages. The following article provides an overview of the prerequisites for the obligation to continue to pay wages in the event of illness.
Dr. Harry F. Notzli
Mr. Dr. Notzli is an attorney and partner in the law firm Zuerich Law Attorneys at Law and specialist attorney SAV labor law.
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The waiting period
In the event of incapacity for work due to illness, the obligation to continue to pay wages only arises if the employment contract is fixed for more than three months or the employment relationship has already lasted more than three months (Art. 324a para. 1 OR). If an employee falls ill within the first three months of permanent employment, the employer is not obliged to continue paying wages. The employer becomes liable to pay only on the first day after the expiry of the three-month waiting period, unless an indefinite contract can be terminated from the outset by notice only on a date after the expiry of three months. It should be noted, however, that numerous collective bargaining agreements and employment contracts deviate from this statutory waiting period in favor of the employee. Next, the UVG does not provide for a waiting period with the consequence that, in the event of incapacity for work due to an accident, payments from the 3. day after the accident (Art. 324b OR). There is also no waiting period in the case of military, civil and protective service as well as maternity with regard to EO benefits.
Reasons for the incapacity must lie in the person of the employee
An inability to work in the sense of Art. 324a para. 1 OR does not only exist in case of impossibility of work performance (z.B. due to flu), but also in case of unreasonableness (z.B. necessary rehabilitation stay in a clinic). The prevention of work is always function-related. For example, a construction worker may be unable to work because of a sprained ankle, while an employee in the office with the same injury is still able to work.
However, the employer's obligation to continue to pay wages only exists if the prevention is "in the person of the employee" (Art. 324a para. 1 OR). This somewhat stilted formulation expresses that there is no obligation of the employer to continue to pay wages if the employee's inability to perform work is due to objective reasons (z.B. Cancellation of a flight during a planned return trip from vacation). If, as a result of such an event, the employee is unable to perform his or her work or is. If he does not start work until later, he must bear the loss of earnings himself; the employer is not obliged to continue paying wages.
Special case of work-related incapacity
A job-related incapacity to work exists if the employee is prevented from performing his or her specifically owed work performance with his or her employer, but would be fully fit for work at another job site or with another employer. In contrast, a general incapacity to work exists if the employee is unable to perform his work, regardless of the employer and the place of work. The employer's obligation to continue to pay wages is not affected by a job-related incapacity to work (apart from benefits paid by the daily sickness benefits insurers; these generally grant the employee a certain number of daily benefits, but in view of the employee's duty to mitigate damages, require the employee to engage in another reasonable activity after this transitional period). In contrast to a general incapacity to work, however, a job-related incapacity to work does not trigger protection against dismissal for a certain period of time. The absence of protection against dismissal is justified by the employee's ability to look for and take up another job without any problems during the notice period in the event of a merely job-related incapacity to work.