A right but also a duty

Vacation is one of the employee’s rights. The idea of such a right is to allow the employee to fulfill his/her duty of loyalty towards his/her employer by getting some rest during the year in order to perform quality work. This means that if, during the vacation period, an employee is prevented from getting some rest (ex. due to sickness), the concerned time does not count as vacation and the latter has to be postponed.

Vacation matters

 

VACATION LENGTH

For a full year of service, unless otherwise agreed by the parties, an employee is entitled to 4 weeks of paid leave and at least 5 weeks in the case of the employee being under 20 years old (art. 329a §1 CO). For an incomplete year of service, vacation time is usually granted in proportion to the duration of the employment relationship during the revelant year (art. 329a §3 CO).

At least two consecutive weeks shall be granted in the course of the relevant year of service. The employer determines the period of holidays taking into consideration the employee’s wishes (ex. family duties in times of school holidays) to the extent that they are compatible with the company’s interests.

 

PROCEDURAL MATTERS

The statute of limitation of the right to get vacation is of 5 years from the day where it is legally due. Either holidays are deemed due from the date fixed by the employer or, if he/she didn’t, from the last day of the calendar year which allows the employee to fully take his/her vacation time (art. 128 ch. 3 CO).

In principle, as long as the working relationship lasts, vacation time can’t be replaced by financial or other benefits. Nevertheless, a highly critical exception was recognized by the Federal Court regarding the inclusion of a vacation indemnity within the hourly wage. In that very case, the contract has to expressly precise which part of the remuneration is related to the vacation time and which one is not (TF 4A_205/2016, June 23rd 2016).

 

CAN VACATION TIME BE REDUCED?

The employer can refuse to pay the vacation time salary if, during that time, the employee executes a remunerated occupation for a third person, despite the employer’s legitimate interests (ex. when the employee is competing with his employer or when the remedial effect of vacation is harmed). If the employer already paid the employee, he/she can ask for a reimbursement (art. 329d §3 CO).

The employer can, in some cases, reduce the vacation time of an employee who worked less than others due to an impediment. Such a reduction of the break period is possibly only if the impediment lasted at least 1 month.

This largely depends on whether the employee is at fault or not, regarding the cause of the impediment at stake. If such a fault exists, the employer may reduce the employee’s vacation time by one-twelfth for each full month during which the employee was prevented from working. If the employee is not at fault, the employer may reduce his/her vacation time only if such absence exceeded two full months.
NB: childbirth can’t lead to such a reduction.

The number and dates of public holidays varies depending on each Swiss canton. Besides the National Day (August 1st), all cantons have at least 8 public holidays. In Geneva, 9 public holidays exist: New Year’s Day, Good Friday, Easter Monday, Ascension Day, Whitsun, Swiss National Day, Geneva Prayday (first Thursday of September), Christmas and Restoration of the Republic Geneva (December 31st).

The employer has to give 1-day break per week to the employee. In principle, Sunday is used for this very purpose (at least every other week). If the employee agrees, the employer may provide two half-days break instead of one or even group them (art. 329 §2 CO).

After giving birth, women are entitled to a 14 weeks maternity leave during which they receive at least 80% of their income. In Geneva, this period is of 16 weeks (art. 16e LAPG).

Pregnant or breastfeeding women may work only if they consent to. They are entitled to leave work or stay home based on a simple notification. However, in such circumstances, the employer does not have to pay the contractual salary, unless otherwise agreed.

Currently, the opportunity to broaden the scope of beneficiaries of such a birth leave to fathers and caregivers is under discussion.

It’s also important to note that the employer must occupy pregnant women in a manner that preserves their own health and those of their children. For example, the employer must adjust conditions of work to avoid them undertaking dangerous activities or occupations that require strenuous physical exertion.

The employer also has to grant hours/day break to the employee when exceptional personal events occur (ex. birth, medical appointments, death…). In case of a part-time job, the employee should rather take his/her appointments during his/her free time.

Also, when the employee’s child is sick, the employer has to allow him/her a break period of 3 days maximum, if the employee presents a medical certificate (art. 36 §3 LTr).

Break days also have to be granted to the employee when he is looking for a job, as soon as the contract is terminated.

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