Terminating an Employee on Sick Leave
Swiss law permits termination of a sick employee, but only after they have been absent for at least 30 days continuously or 90 days intermittently within 12 months—and only with proper justification. Termination during the first 30 days of sickness is generally unlawful. You must give written notice respecting the statutory notice period (usually 10 days or as stated in the employment contract), and document your grounds carefully.
You can dismiss an employee who is unfit to work—but not simply because they are sick. Swiss employment law (Obligationenrecht, OR Article 336c) protects workers during genuine illness, creating a waiting period before dismissal is legally safe.
The rules differ depending on how long and how often the employee has been absent. Timing and documentation are everything here.
When You Can Terminate a Sick Employee
Termination becomes lawful once sickness absence crosses a threshold: either 30 consecutive days or 90 days spread over 12 months. Before that, dismissal is almost always unlawful, even with cause. The threshold protects workers from retaliation for ordinary illness.
The absence must be genuine medical incapacity, confirmed by a doctor's note or Arbeitsunfähigkeitszeugniss (incapacity certificate). An employee claiming sickness who is in fact shirking or on unauthorized leave sits in a different legal position.
- 30+ consecutive days of continuous sickness: termination permitted after the threshold
- 90+ intermittent days within one 12-month rolling period: termination permitted after threshold
- Notice period applies in full: typically 10 days or as per employment contract
- Termination must have additional legitimate grounds (redundancy, poor fit) beyond the sickness itself
- Illness contracted at work (workplace accident) or occupational disease has stricter protections
- Cantons may set stricter rules; confirm with your canton's labour office (Arbeitsinspektorat)
Your Obligations During Notice
Once you issue termination notice, the employee remains entitled to their salary during the notice period, whether working or on sick leave. You cannot claw back wages or suspend pay because of continuing incapacity. Salary continuation obligations are set by contract or, if silent, by canton norms or collective agreement (GAV).
Keep the employee informed of their legal rights. If they dispute your grounds or the notice period, a labour court will review your documentation. Transparency now prevents disputes later.
- Pay salary in full during notice, even if employee remains unfit to work
- Document medical absence with dated incapacity certificates from their doctor
- Issue termination in writing, signed and dated, with clear notice period and reason
- Retain copies of all medical documents and correspondence for 5 years
- Do not make demands on the employee to return to work while on sick leave
- Consult your canton's labour office or employment lawyer before serving notice
The Most Common Mistake: Premature Termination
The single biggest error is terminating an employee after 2, 3, or even 10 days of sickness—before the 30-day threshold. Courts routinely overturn these dismissals and award severance pay (Entlassungsentschädigung) and damages. The employer then owes back pay, social contributions, and legal costs.
Employers often confuse sickness absence with other grounds for dismissal (poor performance, misconduct) and try to combine them. Swiss courts scrutinize this closely. If the primary reason is illness, the threshold still applies; mixing in other reasons does not bypass the 30-day rule.
- Terminating before 30 consecutive or 90 intermittent days is unlawful without exceptional cause
- Courts award severance if you dismiss too early; expect CHF 2,000–10,000+ in many cases
- Combining sickness with other grounds (e.g., 'poor fit') does not circumvent the waiting period
- Social insurance contributions may still be due even after termination is overturned
- The burden of proof is on you: save all medical certificates and your written justification
- An employment lawyer's letter can cost CHF 500–1,500 but often prevents costly litigation
Frequently asked questions
- Can I fire an employee after one week of sickness?
- No. Terminating before 30 consecutive days of sickness is unlawful under Swiss OR Article 336c, even if you have other reasons. The court will likely overturn the dismissal and award damages. Wait for the threshold or consult a lawyer about whether you have a truly separate, pre-existing ground for dismissal.
- Does the employee have to be paid during their notice period if they're still sick?
- Yes. During the notice period, you must pay the employee's full salary (or percentage of Pensum if part-time) regardless of whether they remain unfit to work. Salary continuation obligations are set by contract or canton norms.
- What if the employee was absent multiple times over six months—does that count toward the 90-day threshold?
- Yes. Swiss law counts intermittent absences within a rolling 12-month period. Five absences of 18 days each total 90 days and trigger the threshold. Each absence must be medically documented. The 12-month window rolls forward, so an absence from January does not count after January the following year.
General information for Swiss employers, not legal advice. Have a lawyer confirm anything with legal consequences.