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18 December 2019
Presenteeism is the practice whereby employees work even though they are ill and should be taking care of themselves. There are many reasons why employees choose to work when they are ill, including the fear that they will be unable to cope with the work otherwise or that their sickness will negatively affect them in their employers' eyes and may even cause them to lose their jobs.
Presenteeism can be driven by the state of an employee's working environment. For example, if superiors have excessive performance expectations this can have a negative effect on employees. Moreover, if no substitution rules or procedures exist, an employee may come into work in order to not burden their co-workers with additional work. However, presenteeism arguably helps no one; it negatively affects the sick employee, their co-workers, the employer and the company as a whole.
Those who work even though they are unable to may prevent or delay their recovery, which can worsen their current health condition and lead to chronic conditions or other serious health problems. Moreover, this results in a renewed and prolonged incapacity to work. Sick employees are also less productive at work and achieve lower-quality results, which leads to mistakes and the risk of accidents in the workplace. Further, if employees suffer from infectious diseases, their behaviour endangers other employees with whom they come into contact. Studies have shown that the cost of presenteeism on employers is much greater than the cost of unjustified absenteeism. Both employers and employees should prevent and refrain from presenteeism.
Employers' duty of care means that they must grant protection and care to individual employees. An employee's superiors are also responsible for this. In particular, an employee's life, health and physical and mental integrity affect their personal surroundings and work. The duties to protect health include all measures which are necessary for this purpose – in particular, ensuring that workplace operating conditions are appropriate.
Employers must make every reasonable contribution to ensure that a sick employee recovers and becomes fit to work again before continuing their employment and prevent anything that stands in the way of this goal.
This includes instructing employees that if they are unable to work they must remain at home to recover and cannot work therefrom. In addition, employers must ensure that sick employees do not infect other employees and thereby endanger them. However, these obligations are often contradicted by so-called 'attendance bonuses' – which employers sometimes promise their employees in order to prevent them from being unjustifiably absent from work – because such bonuses can encourage presenteeism.
On the other hand, employees' duty of loyalty to their employer obliges them to refrain from doing anything that could economically harm the employer. Since employers are dependent on able-bodied employees to do the work for them, a sick employee must avoid anything that prevents them from recovering and regaining their ability to work as quickly as possible or that puts people in their working environment at risk of becoming ill or unable to work themselves due to illness. This is because employees who are unable to work not only cause their employer a loss of workforce, which must be compensated, but also oblige the employer to continue to pay wages to the sick employees (at least within the scope of the statutory entitlement).
Therefore, an employee who is ill must follow their employer's instructions, which urge employees to recover before returning to work. Employers must refuse an employee's willingness to work and are therefore not in default of acceptance. If an employee becomes incapacitated to work after the end of their probation period and subsequently receives a termination notice from their employer, it is null and void pursuant to Article 336c of the Code of Obligations and has no effect. This also applies if the employee continues to work for the employer despite their incapacity to work. Whether the employee is aware of their health status and knows the cause of their incapacity to work is unimportant.
If the employee is aware of this and does not inform the employer of their incapacity to work, they violate their duty of loyalty to their employer. However, according to the Federal Supreme Court, such an employee has not behaved in an unlawful manner if they refer to the invalidity of the contract.
For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email (firstname.lastname@example.org). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.
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