Switzerland: Vacation Entitlements Under Swiss Law
With the upcoming holiday season, the following article is intended to provide a short refresher of the legal basis for employees’ vacation entitlements.
Duty to Work Becomes Duty to Rest
When it comes to an employee’s vacation entitlement, it should be noted that vacation time represents working time during which the employee has to restore his/her ability to work and recover.
Under the Swiss employment law, the entitlement to paid vacation time is strictly regulated. A deviation from the statutory rules is only valid if it puts the employee in a better position. A contractual reduction in statutory vacation entitlement is not possible, and clauses stipulating that unused vacation entitlements expire at the end of each year are invalid. The employer has to ensure that the full vacation entitlement is taken by an employee each year. Monetary compensation of vacation entitlements is prohibited in any way, except in the case of irregular part-time work or at the end of an employment relationship. If vacation entitlements have wrongly been compensated monetarily, the employee can force the employer to grant these exact vacation credits again or to pay them a second time at the end of the employment relationship. In such cases, the law supports a possible double enrichment by the employee. Claims for unused vacation entitlements expire five years after the year they accrue (Art. 128 para 3 CO).
The minimum vacation entitlement per year according to Art. 329c para 1 CO is:
– 5 weeks per year of service up to the age of 20
– 4 weeks per year of service for all other employees
At least two consecutive weeks of vacation must be granted to an employee on an annual basis (Art. 329c para 1 CO). This regulation is intended to allow an employee a sufficiently long period of rest, as studies have shown that it generally takes at least 8 to 10 days for an employee to fully recover on holiday. The remaining annual vacation entitlement may be divided as desired by the parties. In the instance of an employee joining or leaving the company during the year, his/her vacation entitlement is calculated on a pro rata basis.
Employer May Decide on Timing of Vacation
The power to determine the timing of the vacation lies with the employer (Art. 329c para 2 CO). However, the employer is obliged to take the employee’s vacation requests into account as long as they are compatible with the interests of the company (Art. 329c para 2 CO). This regulation does not preclude an employer from defining certain periods during which part of the vacation must be taken (e.g., business holidays). In case the employer orders a certain time to be taken off, the employer should always consider an employee’s family responsibility and aim to plan its employees’ vacation time approximately 3 months ahead of time to ensure sufficient time to plan the vacation.
Public Holidays vs. Vacation Entitlement
It is important to distinguish between the annual vacation entitlement of an employee and public holidays. Swiss law only knows one federal public holiday, 1st of August (National Day). The other public holidays are regulated at the cantonal level. According to Art. 20a of the Labour Act, the cantons may designate a maximum of 8 additional public holidays.
Reduction of Vacation Entitlements
Long-term absences are a possible cause to reduce vacation entitlements. For example, if an employee is absent due to illness or accident for at least two full months in a year, the yearly vacation entitlement may be reduced to 1/12 and another 1/12 for each additional full month of absence.
Sickness of the Employee During a Vacation
If employees fall ill or have accidents during their vacation, they may have their vacation days credited back to them. However, not every illness/accident triggers such a right. The employee must prove that due to the illness/accident, he/she was not able to enjoy the vacation.
