Leave and disability: a guide for employers and employees

The employee’s doctor must certify that the patient’s state of health allows him/her to go on vacation and travel, without aggravating the condition or contradicting the reason for incapacity for work.

The particularity of this medical certificate is that it does not attest to an inability to work, but rather to an ability to benefit from the advantages associated with leave. Thus, for medical reasons, it is up to the doctor to limit or supervise the right to go on vacation, particularly with regard to..:

• choice of location
• authorized activities

The loss-of-earnings insurer’s general terms and conditions of insurance may contain rules on taking vacation during incapacity for work. It is therefore expressly recommended that you refer to them.

As part of its obligation to provide information, the employer must ensure that the employee is aware of the conditions imposed by the loss-of-earnings insurer.

It would appear difficult for the employer to refuse vacation during a period of incapacity, provided that the employee submits a medical certificate meeting the criteria set out in point 2, and that the loss-of-earnings health insurance company also agrees.

However, partial incapacity is expressly reserved for cases where the employer has an objective need for the employee’s residual capacity to work.

For a vacation to be possible, in addition to the above, the medical certificate must expressly state that the trip is not incompatible with the employee’s state of health.

Risks can be identified at three levels:

1.working relationships

An employee who goes on vacation without first seeking the employer’s permission, despite being warned to do so, is in breach of her duty of loyalty and is liable to immediate dismissal for just cause if her absence lasts more than a few days.

The unilateral taking of vacations by the employee may thus constitute just cause for immediate dismissal (TF 4A_280/2017). The notion of just cause is a legal concept freely examined by the judge, who assesses this breach of contract in the light of a number of criteria, in particular:

• duration of absence
• its impact on company organization and activity
• the existence of any previous warning for the same reason
• refusal by the employer to allow the employee to take vacation time
• a prior threat of sanctions by the employer in the event of insubordination (Commentaire du contrat de travail Jean-Philippe Dunand, Pascal Mahon, 2nd ed.)

2.compensation

The unilateral taking of vacations by the employee may constitute grounds for suspension of entitlement to daily allowances or payment of salary.

3.compensation for damages

In the event of unjustified unilateral vacation taking, the employee is liable for the damage caused under art. 321eCO, and must compensate for any consequential damage caused by his or her absence (e.g. overtime worked by other employees, higher remuneration demanded by a temporary replacement, claims from a customer delivered late as a result of the employee’s absence, etc.).

The above rules also apply during the notice period. They may, however, be applied less severely if it is the employer who has terminated the Contrat than if it is the employee.

To answer this question, we have to ask ourselves whether it’s possible to be “on partial vacation”. We don’t think it’s possible, so if vacation time is granted, the whole time will be vacation.