Useful Information Concerning “Holidays”
Holiday is defined as the exemption from the obligation to work while, at the same time, receiving one’s salary. As important as holidays are for employees’ relaxation, it is equally important to know the legal situation in connection with these holidays, especially since conflicts under labour law can arise quickly. The most basic points are briefly explained below without claiming to be exhaustive.
II. Legal Basis
Holidays are governed by Art. 329a et seq. of the Swiss Code of Obligations (CO). It is necessary to distinguish the terminology of “holiday” from “leave”. While these terms are used synonymously in common parlance, the legislature does not understand the term “leave” to mean normal holidays; rather, it’s understood to mean leave for extracurricular youth work (Art. 329e CO), maternity leave (Art. 329f CO), paternity leave (Art. 329g CO), leave to care for dependents (Art. 329h CO) as well as leave to care for a child whose health is seriously impaired due to illness or accident (Art. 329i CO).
III. Duration of Holiday
The employer must grant the employee at least four weeks of holiday each year of service and at least five weeks of holiday for employees up to the age of 20 (Art. 329a CO). This is the minimum duration of holiday though the employment contract can of course provide for longer holidays. The minimum duration must be granted so that holidays cannot be compensated financially. The situation is different when the employment relationship is terminated. If the employee still has a holiday entitlement at the end of the employment relationship, this must be paid out to him or her.
During holidays, the employee must be granted the opportunity to relax. If the recreational purpose is thwarted, it cannot be considered a holiday. Thus, it is not permitted to declare culpable absences from work as holidays after the fact, even if both parties agree to it.
The recreational purpose of the holiday may also be thwarted by accident or illness. If an employee falls ill or has an accident during the holiday, so that the purpose of the holiday is not guaranteed, the employee is entitled to the corresponding number of additional days. There does not necessarily have to be an actual incapacity to work; rather, if the recreational purpose of the holiday is not guaranteed for health reasons, this is sufficient for a claim to additional allowance.
IV. Reduction of Holiday
If the employee is prevented from working for a total of more than one month during a year of service through his or her own fault, the employer may reduce the holidays by one-twelfth for each full month of absence (Art. 329b CO). The absence must be due to the employee being unable to work. Unpaid holiday, legal disputes, operational disruptions, etc. are therefore not covered by Art. 329b CO. Only absences that are self-imposed by the employee or if no work can be performed due to gross negligence are entitled to a reduction of vacation.
If the absence is not the fault of the employee, such as in the case of illness, accident or military service, the holiday entitlement may only be reduced by one-twelfth from the second full month of absence (Art. 329b Para. 2).
V. Timing of Holiday
The timing of holiday also regularly offers potential for conflict between employers and employees. According to Art. 329c of the Swiss Code of Obligations, holidays must generally be granted during the course of a year of service, whereby at least two weeks of holiday must be taken at the same time. Contrary to popular belief, the timing of the holidays is not determined by the employee, but by the employer, whotakes the wishes of the employee into account as far as possible.
If holiday is not taken during the year, it must be carried over to the next year. It should be noted that the holiday entitlement expires after five years in accordance with Art. 128 No. 3 of the Swiss Code of Obligations.
Although the timing of the holiday is determined by the employer, he or she must take into account the wishes and family circumstances of the employee to the extent that this is compatible with the interests of the company or household. In particular, holidays may not be arranged exclusively outside of the school holidays if the employee has school-age children. The employer must determine the holidays early so that the employee can organize his or her holidays accordingly. In the case of longer holidays, the courts assume a lead-time of about three months.
In order to prevent conflicts in connection with holidays, it is advisable to have an open dialogue in this regard and to coordinate these matters with the employees at an early stage. This is all the more important as the relaxation and satisfaction of the employees is also in the interest of the employers.
-Dr. iur. Philipp Studhalter, Attorney at Law and Partner at Studhalter & Meier Rechtsanwälte AG