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Salary in case of the worker’s absence – art. 324a and 324b of the Swiss Code of Obligations

Writer's picture: Karim GuinandKarim Guinand

In Switzerland, the right to salary during an employee's incapacity is governed by Articles 324a and 324b of the Swiss Code of Obligations (CO).


Employees are entitled to receive their full salary from their employer when they are unable to perform their work due to certain reasons. To qualify for this right, several conditions must be met:


  1. The Incapacity Must Not Be Due to Employee Fault: The incapacity must not be attributable to the employee's fault. Non-faulty incapacities include illness, accidents, or legal obligations such as military service, court testimony, or caring for a seriously ill child. In contrast, incapacity caused by actions such as alcohol abuse or drug use is considered fault-based.

  2. The Incapacity Must Be Inherent to the Employee: The cause of the incapacity must be related to the employee directly and not due to external factors. For example, if an employee is stranded in their country due to a snowstorm, this would not qualify as an inherent incapacity.

  3. Duration of Employment: The employee must have been employed for more than one quarter (3 months), or the employment contract must be for more than one quarter (3 months) in duration.

It is important to note that in the case of an employee's pregnancy, the employer is required to continue paying the salary similarly.


Furthermore, it is the employee's responsibility to prove their inability to work, for instance, by providing a medical certificate in the case of illness.


Duration of Salary Payment During Incapacity:


The duration of salary payment during incapacity is based on the employee's length of service. The Bernese scale defines the minimum salary continuation obligations according to years of service. This scale can be consulted at the following address:



For example, the employer is required to pay salary for three weeks during the first year of service and one month's salary during the second year of service.

Additionally, collective agreements, standard contracts, or employment contracts may provide for a longer duration of salary payment.


How Can Employers Discharge This Obligation?


Article 329b of the CO outlines how employers can discharge their obligation to pay salary during employee incapacity. Employers can be relieved of this obligation if they take out a loss of earnings insurance for illness. This insurance must meet four conditions:


  1. The insurance must cover at least 80% (4/5) of the employee's salary.

  2. The daily benefit must be paid for at least 720 days or 730 days within a 900-day period.

  3. The employer must pay at least 50% of the insurance premium.

  4. The waiting period (the period between the onset of illness and the start of benefit payments) must be a maximum of 2 to 3 days.

If the insurance benefits are less than 80% of the salary, the employer must cover the difference.


Finally, the loss of earnings insurance must be communicated to the employee explicitly and in writing.


For more detailed information on this subject, Valentin Legal Consultation would be pleased to welcome you to their office located at rue du Valentin 1, 1004 Lausanne. We can also be reached by phone at 021 351 30 00 or by email at info@cjdv.ch.

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