Health insurance pays for treatment, not for the salary. When an illness prevents you from working, your income depends on other rules: those of the Code of Obligations (CO), of the employment contract, and of any daily-allowance insurance. They combine, and the one most favourable to the employee is the one that applies.
The principle: the employer pays for a limited time
If the employee is prevented from working through no fault of their own, for example because of illness or accident, the employer pays them their salary for a limited time. This obligation applies provided the employment relationship has lasted more than three months, or was entered into for more than three months. During the first three months of an open-ended contract, the law therefore guarantees nothing.
The minimum period is set as follows: during the first year of service, the employer pays three weeks' salary; after that, salary for a longer period, fixed equitably, taking into account the length of the employment relationship and the particular circumstances. An agreement, a standard employment contract or a collective agreement may provide for longer periods. The same rule applies if the employee is pregnant.
After the first year: the courts' scales
The law does not put a figure on the "longer period". The courts have specified it by means of scales. The Supreme Court of the canton of Bern publishes the Bern scale, which applies in the absence of daily-allowance insurance and of a more favourable rule in the contract: three weeks in the first year of service, one month in the second, two months in the third and fourth years, three months from the fifth to the ninth, four months from the tenth to the fourteenth, and five months from the fifteenth to the nineteenth.
The same page states that the entitlement is calculated per year of service and starts again with each new year of service, and that several absences within the same year are added together. The Swiss mission to the international organisations in Geneva states, in its manual, that the Bern scale serves as the reference in French-speaking Switzerland and in the canton of Bern, and that the canton of Basel-Stadt applies the Basel scale.
When loss-of-earnings insurance takes over
The law allows the employer's obligation to be replaced by a solution that is at least equivalent, provided for by a written agreement, a standard contract or a collective agreement. In practice, this is a sickness daily-allowance insurance taken out by the employer. According to the Bern Supreme Court, such an allowance is equivalent when it amounts to 80% of the salary for up to 720 days and the employer pays half the premium.
This insurance is generally not compulsory in Switzerland. The Swiss mission's manual in Geneva specifies that sickness loss-of-earnings insurance is governed, at the employer's choice, by the health insurance law or by the insurance contract law. Conditions therefore vary from one contract to another: waiting period before the first payment, rate, duration and reservations.
Daily-allowance insurance under the LAMal
The KVG/LAMal provides for an optional daily-allowance insurance. Anyone who lives in Switzerland or works here, aged at least fifteen and under 65, can take it out, individually or as part of a group policy through their employer. The insurer may exclude, by means of a reservation, illnesses that already exist at the time of admission; these reservations lapse after five years at the latest.
The amount of the allowance is agreed with the insurer. The entitlement arises when working capacity is reduced by at least half and, unless otherwise agreed, on the third day after the illness begins. Allowances must be paid for at least 720 days within a period of 900 days, and for 16 weeks in the event of maternity, at least 8 of them after the birth.
Protection against dismissal
After the probationary period, the employer may not terminate the contract during a total or partial incapacity for work caused by an illness or accident that is not the employee's fault, for 30 days in the first year of service, for 90 days from the second to the fifth year, and for 180 days from the sixth year. Notice given during this period is void; if notice was given before it, the notice period is suspended and only resumes at the end of the protected period.
This protection does not apply to resignation by the employee, nor during the probationary period. Nor does it extend the payment of salary: the two periods, that of protection and that of payment, are calculated separately.
What is worth checking
- The employment contract and the collective agreement: do they provide for a longer period than the legal minimum?
- Whether the employer has loss-of-earnings insurance, and its waiting period, rate and duration.
- The medical certificate, to be handed in according to the rules set out in the contract.
- For the self-employed: no employer pays, and only daily-allowance insurance taken out yourself covers the loss of income.