Enjoyment and reduction of vacation entitlement: what Swiss law says
To enjoy a vacation, you need to be able to rest. But what happens if illness interferes? Or if the absence is prolonged? This second and final installment in our series on vacation entitlement, written by our partner CJE, Avocats, Conseillers d’Entreprises, sheds light on two key aspects: the conditions under which vacation entitlement can be enjoyed, and the cases in which this entitlement can be reduced.
In a previous article, we dealt with the main principles you need to know about vacation entitlement. Today, we’re taking a closer look:
- Enjoyment of vacation entitlement: any incapacity does not prevent the employee from enjoying the benefits that vacations should bring.
- Reduced vacation entitlement: vacation entitlement may be reduced in certain circumstances.
Vacation enjoyment
The purpose of vacation is the physical and mental recuperation of the employee. An incapacity to work must be sufficiently serious to hinder the employee’s physical and mental recovery, and thus the achievement of the purpose of the vacation.
For a medical condition to prevent the vacation from fulfilling its purpose, it must first of all be sufficiently serious, or to the point of hindering the employee’s physical (e.g. severe pain or constant discomfort) or mental (e.g. nervous breakdown) recovery. However, harm that is benign in the medical sense (complete immobilization, total isolation, illness requiring quarantine or constant and prolonged medical care) can have consequences that prevent relaxation, as they take away the employee’s control over his or her schedule (location and activities).
According to doctrine and jurisprudence, ailments requiring bed rest on medical prescription, major treatment or a hospital stay are considered to be cases of incapacity to exercise vacation entitlement, while minor indispositions or injuries such as sunburn, a broken finger, a sprained ankle, indigestion or a simple cold do not result in an inability to rest or enjoy leisure activities. Furthermore, the Federal Court has ruled that an incapacity to work in a particular job or position does not constitute an inability to benefit from the purpose of a vacation.
The law is silent on the restitution of vacation entitlement. However, it is common ground that days during which the employee is unable to exercise his or her vacation entitlement due to illness must be returned.
What you need to know
Both doctrine and jurisprudence agree that an indisposition lasting one day, or even several non-consecutive days, cannot be taken into consideration. The period of incapacity must last more than two or three days for vacation days to be restored.
According to legal doctrine, it is not possible to consider a partial inability to exercise vacation entitlement. If the impairment prevents the purpose of the vacation from being fulfilled, the employee must provide the contractual service in proportion to his or her capacity to work, and for the remainder of the time, he or she receives the salary in accordance with art. 324a of the Swiss Code of Obligations, whereas if the purpose of the vacation is not impaired, he or she receives the salary pertaining to the vacation, and any restitution of vacation time is excluded.
Employees who fall ill during their vacation must provide proof that their incapacity prevents them from exercising their vacation entitlement.
In accordance with the employee’s duty of loyalty (art. 321a para. 1 CO), if the employee suffers an accident or falls ill during his/her vacation period and is unable to take advantage of his/her vacation, he/she must inform his/her employer as soon as possible. If the employee is still able to work, he or she must immediately declare his or her inability to take advantage of his or her vacation and return to work without delay.
Reduced vacation entitlement
If, through his or her own fault, an employee is prevented from working for more than one month in the course of a year’s Services, the employer may reduce the employee’s vacation entitlement by 1/12th for each full month of absence (Art. 329b para. 1 CO).
Vacation entitlement cannot be reduced
The law (art. 329b para. 3 CO) specifies situations in which the employer may not reduce vacation entitlement:
- maternity leave: an employee has taken maternity leave in accordance with art. 329f;
- other parent’s leave: a worker has taken the other parent’s leave within the meaning of art. 329g.
- leave in the event of the mother’s death within the meaning of art. 329g bis;
- leave to care for a child whose health has been seriously impaired by illness or accident under art. 329i;
- adoption leave pursuant to art. 329j.
Limited reduction in vacation entitlement
The employer may, after a grace period, reduce the employee’s vacation entitlement if, through no fault of his/her own, he/she is prevented from working for reasons inherent in him/her, such as:
- Disease
- Accident
- Fulfilling a legal obligation
- Holding a public office
- Youth leave (up to the age of 30, employees can take up to one week’s youth leave to volunteer for extracurricular youth activities on behalf of a cultural or social organization).
What is the grace period? The grace period is the minimum length of time after which vacation entitlement can be reduced. Vacation entitlement may be reduced in the event of (cumulative) absences during the same year of service, as follows:
- 1 month in the event of illness, accident, fulfillment of a legal obligation, performance of a public duty and taking of youth leave; the reduction may be 1/12th per full month of absence from the second full month of absence.
- 2 months in the event of pregnancy; the reduction may be 1/12th per full month of absence from the third full month of absence.
In the case of partial incapacity, the employer must determine how many days of full-time absence correspond to the part-time impediment. For example, if a 100% employee is 70% incapacitated, this corresponds to 3.5 days of full-time absence (5 days multiplied by 70 divided by 100).
Vacation entitlement may be reduced for prolonged absences, accumulated over the course of a single year of Services and based on the employee’s own decision, such as unjustified days of absence.
In this case, entitlement to a reduction is 1/12th per full month of absence, starting with the first full month of absence.
- Contract start date: January 1, 2023
- Employment rate: 100%, 40h/week
- Vacation entitlement: 4 weeks/year, 1.67 days per month
- Duration: full year
- Incapacity due to illness through no fault of the employee: March 31 to June 22, 2025, 12 weeks
- Cumulative absence: 2.76 months (12 weeks : 4.35)
- Period for which the employer can assert a right to reduced vacation: 1 month (2.76 months from which the grace period – 1 month – and the 0.76 months are deducted, since only full months are taken into account).
- Vacation entitlement for 2025: 18.33 days (11 x 1.67 days)
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.
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