Switzerland: The Swiss Federal Court Confirms Legal Consequences – Possibly a Termination Without Notice – If the Employee Fails to Properly Inform the Employer About Their Absence from Work Due to Sickness (BGer 4A_486/2024 dated 15 January 2025)

Art. 321a para. 1 CO obliges the employee, among other things, to conserve the legitimate interests of the employer. The obligation of an employee to announce absences as early as possible to the employer, especially if due to an accident or illness. Although the obligation to inform the employer about absences is straight forward, it repeatedly leads to tensions and confusions, mainly due to employees lacking sufficient knowledge about their duty and employers being hesitant to enforce consequences when the obligation has not been met. The Federal Supreme Court Ruling 4A_486/2024 (hereinafter “ruling”) achieved to clarify many legal uncertainties in this regard.

1. Duty to Inform: No More Room for Interpretation

The ruling leaves no more room for interpretation with regard to the obligation to provide information to the employer in the event of illness or accident. In contrary, the ruling states that as soon as the employee’s state of health allows it, they must contact their employer immediately and inform them not just about the absence but also the expected duration and the extent of their incapacity to work. The obligation to provide information does not end after the initial information. Employees are obliged to inform their employer timely, continuously, and fully about their incapacity to work for the entire duration of their health impairment. Any change in the prognosis (e.g., early return to work or a longer-than-expected absence) must also be communicated immediately.

The ruling emphasises that this obligation applies to all employees, but is particularly important for people who perform vital functions in the company since only if the employer is notified of the absence in time, appropriate organisational measures to ensure smooth operations and/or avert possible damages may be implied.

2. The Deliberate Violation of the Duty to Provide Information May Justify a Termination Without Notice

In the case at hand, the employee did not submit a medical certificate in time despite having been issued a warning by the employer and been made aware of legal consequences in the event of non-compliance within a set deadline. This caused the employer to terminate the employment relationship without notice. The Federal Supreme Court supported this decision and dismissed the employee’s claim for unjustified termination without notice.

If you have questions on how to implement clear guidelines / orders for your workforce about when, where, and how to hand in medical certificates, we will gladly assist you.