Employees often plan their vacations well in advance and try to make the most of their annual vacation entitlement by using public holidays. However, many employees, and employers too, are unaware that under certain conditions it is possible to reduce vacation entitlement.
The law grants every employee at least four weeks of vacation per year of service (Art. 329a OR). It is not uncommon for employers to grant their employees five or more weeks of vacation per year of service. The vacation entitlement increases in proportion to the work performed. For four weeks of vacation, the vacation entitlement increases by 1.67 days per month. For five weeks of vacation, the vacation entitlement increases by 2.08 days, and for six weeks of vacation, it increases by 2.5 days per month.
However, Swiss labor law is based on the principle of "no work, no vacation," which is why vacation entitlement does not generally increase if no work is performed. However, this principle is not absolute, and the law provides for certain restrictions. In particular, Art. 329b of the Swiss Code of Obligations deviates from the aforementioned principle and restricts vacation reductions.
In order for an impediment to work to be considered culpable, there must be obvious misconduct on the part of the employee or serious negligence. Minor negligence is not sufficient. In the event of a dispute, however, the employee bears the burden of proof that they exercised the expected level of care.
b) Impediment to work through no fault of one's own (Art. 329b para. 2 CO)In the event of an inability to work through no fault of their own, the law grants the employee an absolute grace period (grace period) for the first full month of absence. A reduction in vacation entitlement of one twelfth is therefore only permissible from the second full month of absence. Subsequently, a reduction of one twelfth may be made for each additional full month of absence. For example, if an employee is prevented from working through no fault of their own for a total of 1.5 months, their vacation may not be reduced. If the employee is sick through no fault of their own for 2.5 months, their vacation may be reduced by one twelfth.
c) Pregnancy (Art. 329b para. 3 CO)The reduction in vacation entitlement under Art. 329b of the Swiss Code of Obligations is based on full months of absence. It is not the specific calendar months that are relevant here, but rather the working months, as a reduction in vacation entitlement requires an inability to work, which is only possible on working days. Because not every working month has the same number of days, for practical reasons the calculation is based on an average month of 21.75 days. If the inability to work thus amounts to 21.75 days, this constitutes a full month of absence.
Article 329b of the Swiss Code of Obligations expressly states that the calculation of vacation reductions is based on the year of service and not on the calendar year. This means that the waiting period starts anew in each new year of service. In practice, this means that a new, individual waiting period begins for each employee on the anniversary of their starting date. For the sake of simplicity, many employers therefore base their calculations on the calendar year, but this must be noted in the employment contracts or in the personnel regulations in order to be valid.
Our MME labor law team will be happy to assist you with any questions you may have about vacation and vacation reduction.
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