28 Sep, 2021 by Marianne Favre Moreillon

Protection of personality during an inability to work

28 Sep, 2021 by Marianne Favre Moreillon

Employers are obliged to protect their employees' personality during the employment relationship, including during an inability to work. Here's an overview of what an employer must consider when an employee is unable to work due to illness or accident.

Article 328 of the Swiss Code of Obligations requires the employer to protect and respect the employee's personality during the employment relationship. The many obligations of the employer arising from this duty to protect the employee's personality continue to apply when the employee is unable to work.

This article covers the following topics:

  • measures to be taken by the employer in conflict situations
  • incapacity for work due to a workplace dispute, and the employer's duty of care
  • contact with the employee during his or her inability to work
  • inability to work and professional duties
  • employee medical confidentiality
  • state of health and confidentiality to be respected by the employer
  • lawfulness of surveillance in the event of doubt as to the medical certificate
  • Inability to work limited to certain tasks
  • possibility for the employer to assign other tasks to the incapacitated employee
  • access to business files and e-mails in the event of the employee's absence
  • directive from the Federal Data Protection Commissioner on access to work-related e-mails
  • protection against dismissal at an inopportune juncture
  • consideration for the employee in the event of dismissal during an inability to work

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