Holidays set in Covid-19 time

Holidays set in Covid-19 time

 "At this time of health crisis, I'm wondering what's happening to the holidays of employees who have been notified to the employer. Do they have an obligation to take the days set? Is there a legal postponement or a "goodwill" postponement? Conversely, can the employer force the employee to take this holiday? " Eric, Geneva

This is a highly topical issue in the run-up to the Easter holidays, when many employees set aside time for their holidays before knowing that their plans would be disrupted.

Legally, when it comes to postponing holidays, a distinction must be made between cases where the employee is unable to work and those where he or she is not. In the first case, typically an illness, the employee's holiday cannot be taken, as its objective of rest and relaxation cannot be achieved. According to established case law, when employees are unable to take full advantage of their holidays, they must be postponed to a later period in the year, on presentation of proof of their inability to work, such as a medical certificate. On the other hand, if the employee is not incapacitated for work, or if the incapacity is not significant enough, there is no right to defer holidays simply because the employee cannot enjoy them as he or she wishes. In such cases, the holiday dates set cannot be changed, unless the parties agree otherwise.

Article 329c of the Swiss Code of Obligations states that it is the employer's responsibility to set the holiday dates, taking into account the employee's wishes to the extent compatible with the interests of the company. There may therefore be exceptional circumstances in which the employer may oblige the employee to take holidays on certain dates for the good operation of the business, but this can only be done if the employer has actually tried in vain to reconcile the imperatives of each party.

Another eventuality, similar to the one mentioned above, concerns "forced holidays", which can also be set by the employer for all or a certain category of staff, when this seems absolutely necessary due to exceptional and unexpected circumstances placing the company in serious difficulty. Academic writers cite the example of a fire that prevented the company from operating, but future case law on this subject will perhaps develop around the current pandemic.

As you will have gathered, under current Swiss law, employees are obliged to comply with the holiday dates agreed with the company, and there is no compulsory postponement of holidays for entertainment reasons, except in the event of the employee's incapacity to work. However, in agreement with the employer, these holidays may be moved. On the other hand, employers may, by way of exception, require their employees to take holidays.