Employees’ Communication Obligations During the Employment Relationship
What are the employee’s information obligations during the employment relationship? Following our previous edition on employer obligations, our partner CJE, Lawyers, Business Advisors, examines here this often-neglected aspect, the disregard of which can expose employees to the loss of significant rights (salary continuation, insurance benefits, allowances).
Foundational Principle: The Duty of Loyalty
All employee communication obligations stem from Article 321a CO. Failure to comply may justify a warning, ordinary termination, or, depending on the severity, immediate termination for just cause (Article 337 CO).
Communication Obligations Based on Type of Absence
From the first day of absence, the employee must:
- inform the employer of any incapacity (illness or accident),
- indicate the foreseeable duration, and
- report any extension or relapse.
The medical certificate must be submitted within the contractual period (generally from the 3rd day). In the event of an accident, notification must be made without delay to allow for the UVG declaration (Article 45 UVG): any delay may lead to the insurer questioning the causal link, to the exclusive detriment of the employee.
Report pregnancy as soon as possible: protection against dismissal runs from the conception of the child, regardless of any announcement to the employer (Article 336c para. 1 lit. c CO; Federal Supreme Court ruling 143 III 21). However, early notification is strongly advised: it triggers specific protections under the Labour Act (Article 35 LTr), is essential for receiving maternity benefits (Article 16b et seq. EOG), and allows the employer to adapt working conditions. Also, inform of the expected date of delivery.
Geneva Specificity: Geneva extends maternity leave to 16 weeks (14 federal EOG weeks + 2 cantonal LAMat weeks).
Report immediately if the newborn is hospitalized for at least two weeks from birth. Submit the medical certificate and a certificate of continued gainful employment (Article 16c EOG). Protection against dismissal is also extended (Article 336c para. 1 lit. cbis CO).
Geneva Specificity (LAMat, J 5 07): In the event of newborn hospitalization, the cantonal extension reaches a maximum of 12 weeks (compared to eight federal weeks).
The law distinguishes two situations depending on which of the two parents dies:
- Death of the other parent (father or mother’s spouse) within six months of birth: the mother is entitled to two additional weeks of leave, to be taken flexibly by week or by day within a six-month framework period (Article 329f para. 3 CO – Article 16cbis EOG).
- Death of the mother within fourteen weeks of childbirth: the other parent inherits 14 weeks of leave, which are added to the two ordinary weeks of the other parent’s leave, totaling 16 weeks (Article 329gbis CO – Article 16kbis EOG). This leave must be taken strictly uninterruptedly from the day after the death: any resumption of work, even partial, results in the immediate loss of remaining benefits.
In both cases: report the death immediately and submit the death certificate to the employer for the activation of maternity benefits.
Report intention and dates as early as possible. After the 6-month framework period, the right is definitively forfeited (Article 16i et seq. EOG). In the event of newborn hospitalization (more than two weeks), this leave is extended up to eight weeks (Article 329g para. 3 CO): report simultaneously, with a medical certificate.
- Child Seriously Ill (Article 329i CO): maximum 14 weeks within an 18-month framework period; report with the compensation fund’s decision and a medical certificate (Article 16n et seq. EOG).
- Care of a Close Relative (Article 329h CO): three days per event, 10 days per year; to be reported with justification.
- Adoption (Article 329j CO): two weeks in the first year; report the project and the date of reception (Article 16t EOG).
Geneva Specificity (LAMat, J 5 07): Geneva extends this leave to a total of 16 weeks (two federal EOG weeks + 14 cantonal LAMat weeks).
Other Obligations in Brief
- Military and Civil Service (Article 18 MSA, Article 329b CO): report upon receipt of the marching order.
- Family Allowances (Article 8 FamA): report any event modifying the entitlement (birth, end of education, death of the child). Late notification may require repayment of undue benefits.
- Other Paid Activity (Article 321a para. 3 CO): inform before starting any activity likely to harm the legitimate interests of the employer or compete with them (Federal Supreme Court ruling 117 II 560). Silence may justify immediate termination (Article 337 CO).
- Personal Situation: report any change of address, marital status, residence permit (LEI), or tax situation affecting the withholding tax rate (Article 83 et seq. FDTA) and/or social benefits.
- Damages and Safety: immediately report any damage caused to a third party or to the employer’s equipment (Articles 321a and 321e CO) and any safety hazard (Article 10 para. 2 OLT 3).
In Summary
The employee who fails to inform their employer in a timely manner bears sole responsibility:
- loss of salary continuation (Article 324a CO),
- refusal of insurance benefits (UVG, DLI, OPA),
- obligation to repay allowances,
- disciplinary sanctions, termination, or even immediate termination (Article 337 CO).
The rule is simple: report immediately and confirm in writing.
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.