Holidays and public holidays during short-time work

Due to the Covid 19 pandemic, the issue of short-time work has become more important in Switzerland and many companies have been dependent on the payment of short-time allowance. Usually, the short-time allowance would be calculated individually for each employee by the unemployment insurance funds. In spring 2020, the summary accounting procedure was introduced. This simplified procedure allows affected companies to minimize the administrative burden and relieves the cantonal employment offices and the unemployment insurance funds. With the new regulation, the chargeable loss of earnings is calculated in an accelerated and simplified summary accounting procedure. With this summary accounting procedure, the entitlement to short-time allowance is determined and paid as a lump sum for all employees in a company. On 17th of December 2021 the Parliament and the Federal Council decided that the summary accounting procedure will be extended until the end of March 2022.

In the normal procedure, companies can also claim short-time allowance for the period of employees’ holidays and public holidays. However, the SECO form which must be used for the summary accounting procedure during the Covid 19 pandemic excludes this for employees on monthly wages.

In a new ruling, the Federal Supreme Court has decided that not considering holidays and public holidays leads to unjustified discrimination of employees on monthly wages compared to those on hourly wages. In the absence of a sufficient legal basis, this disregard is unlawful (BGer 8C_272/2021).

This court ruling has great significance for many companies in Switzerland. All companies that have received short-time allowance for employees on monthly wages have been unlawfully underpaid.

Proposal of Action:

After this ruling, the question arises as to whether an affected company can still claim the short-time allowance retroactively. However, the forfeiture period of three months may already have expired for most of the companies concerned. SECO has taken note of the Federal Supreme Court’s ruling and will decide how to proceed. It is recommended that affected companies include holiday and public holiday compensation in the short-time allowance statement for future accounting periods. For past accounting periods, it is advisable to file an application to restore the deadline, which can be combined with a request to suspend the application until SECO has determined the further procedure in this regard due to the Federal Supreme Court ruling.