Holiday incapacity in the event of an accident during the holidays

Holidays are essential for employees to be able to do a good job. They are intended for recreation and allow employees to take time off. However, it is not uncommon for an employee to have an accident during the holidays or to stay at home due to illness. In these cases, the purpose of vacation, to allow employees to rest, may no longer be guaranteed. If this is the case, one speaks of incapacity for holiday.

An employee is incapacitated for a holiday, if the purpose of the holiday is lost due to an accident or illness. Incapacity for holiday should not be confused with incapacity for work. For example, incapacity to work due to a broken hand does not necessarily constitute incapacity for holiday. Under certain circumstances, the employee can recover during the holidays even with a fractured hand. If the employee is incapacitated for a holiday, the vacation days are considered not taken and the duration of the vacation is extended accordingly.

The right to make up vacation days in case of an accident is only granted if the accident is not self-inflicted. If an employee is incapacitated for holiday due to a self-inflicted accident, he/she is not entitled to make-up the holiday. In the case of an accident during holiday, the employee must prove not only that the accident happened, but also that her or she was unable to recover during the holiday due to this circumstance. It depends on the individual case whether the relevant requirements are fulfilled.

Incapacity for holiday may also be given if the employee falls ill during his holidays. As in the case of an accident, what matters in the case of illness is whether the purpose of the holiday is lost due to the Illness. This requires a significant degree of impairment and a certain intensity of the health disorder. A slight cold, a headache, a sprained ankle, or a sunburn do not lead to incapacity for holiday. If the employee cannot take a holiday due to illness and is therefore unable to recover, he is also entitled to make up for his holiday.

The vacation entitlement may be reduced if an employee is prevented from working for a longer period during a working year. If the employee is incapacitated for work for more than one month in a working year due to his/her fault, the employer may reduce his/her holiday by one-twelfth for each full month of absence (Art. 329b para. 1 CO). In the case of incapacity from work through no fault of the employee, the reduction of further holiday entitlement is only possible from the second month of absence from work.