It sometimes happens that an employee on sick leave is contacted by their employer during their absence. What are the legal implications of this?
The purpose of sick leave is to allow the employee to rest and recover their health as much as possible. However, contact from the employer during this specific period can potentially compromise the employee’s recovery.
Under Swiss law, there is no specific regulation addressing this issue. However, there is a general obligation for the employer to protect the health and personality of their employees.
“The employer shall protect and respect the personality of the employee in the context of the employment relationship; they shall show the necessary consideration for their health and ensure the maintenance of morality” (Art. 328 para. 1 CO). Therefore, it can be argued that if the employer contacts the employee during their sick leave and thus compromises their recovery, they may be violating their legal obligation to protect the employee’s personality. Additionally, Art. 328 para. 2 CO and Art. 6 para. 1 LTr stipulate that the employer is required to take all reasonable measures to protect the health of their employees.
In light of Art. 328 CO, we can deduce that although there is no specific protection regarding employer contact during an employee's sick leave, such actions might contravene the obligation to protect the health and personality of the employee.
However, it is crucial to examine each case based on the totality of circumstances involved. Indeed, prohibiting all forms of contact between the employer and the employee during sick leave is also not feasible. In Swiss legal practice, there are no clearly defined criteria for distinguishing between acceptable and unacceptable contact. On this point, French practice can provide some insights.
In French law, it is clearly established that during a sick leave, the employer should generally refrain from contacting their employee. This includes any details related to files, client follow-ups, or other information related to the employee’s work. This prohibition of contact covers all means of communication, including emails, phone calls, text messages, etc. However, there are some exceptions. Specifically, the employer is allowed to contact their employee for:
The return of work tools.
The communication of necessary information for the company's operations during the employee’s absence (access codes, documents, etc.).
Although French law does not apply in Switzerland, this practice provides an overview of the types of contact that are acceptable or not during an employee's sick leave.
Given the above, we can deduce that in Switzerland, while contact with the employee during their sick leave should generally be avoided, the employer may still reach out to the employee for specific matters, such as the return of work tools, the need to obtain access codes or essential documents for the company’s operations. Similarly, the employer may contact the employee during their absence to obtain their work certificate or essential documents requested by insurance.
If you need further information or support, please feel free to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your queries.
Author: Caroline Bachelard
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