Off work due to pressure

Off work due to pressure

I underwent surgery for a herniated disc in October 2016, which led to six months off work followed by a "rollercoaster" recovery. As a result of these absences, my manager put pressure on me, forcing me to go on sick leave again. I've contacted my company's human resources department to ask for a change of group, to no avail, and the loss of earnings insurance will soon stop paying my salary. What do I do now?

T., Geneva

The remuneration of a sick employee is governed by article 324a of the Swiss Code of Obligations (CO), which lays down three conditions for the payment of wages in the event of an inability to work: the inability to work must be non-culpable, it must be inherent in the employee and the employment relationship must have lasted for more than three months or have been concluded for more than three months.

The law sets a minimum of 3 weeks as the period during which such a salary must be paid during the first year of service, and specifies only that a more senior employee will be entitled to a longer allowance, set fairly but limited in time. Legal doctrine and case law have therefore had to establish different scales (known as the Bernese, Basle and Zurich scales) to determine the duration of salary payments according to the duration of the employment relationship.

That said, to protect themselves against the financial loss inherent in the risk of employee absence, many employers take out daily allowance insurance policies that pay the absent employee's salary instead of the employer.

Such a derogation from the law is only valid if the benefits provided correspond to 80% of the employee's salary and are paid over a minimum period of 720 days out of 900. Once this period has elapsed, there is no longer any entitlement to salary for an employee who has been prevented from working through no fault of his or her own, and who can only turn to the disability insurance scheme.

It should also be noted that article 328 of the Swiss Code of Obligations stipulates that employers must refrain from violating the personal rights of their employees and, in particular, have a duty to take the necessary measures to protect employees from violations by their superiors. In this respect, the pressure you are complaining of from your manager could render your company liable.

If you are fit to work, you should therefore offer your employer your job back and take advantage of your legal rights if he refuses for the wrong reasons.