An employer cannot force a worker to take vacation during the coronavirus crisis. Nor can he stop him from canceling vacations he had already planned. This is the opinion of certain lawyers specializing in labor law. Among them, the Genevan Christian Bruchez, one of the co-authors of the “Commentary on the employment contract” published in 2019.
Because the issue is debated and the words of specialist lawyer Eric Cerottini, who spoke last week in our columns, are not unanimous.
“The case law of the Federal Court and the cantonal courts is clear,” notes Christian Bruchez. The worker must be able to benefit from an effective vacation. Their goal is to rest, to change ideas, to travel, to meet family and loved ones, etc. The employee must be able to organize them freely, which is currently impossible. “
Even if the authorities have not ordered strict confinement, the fact that they call for staying at home and limiting contact as much as possible prevents fulfilling “the conditions for taking holidays as envisaged by the legislator”, according to the lawyer.
In their “Commentary on the employment contract”, he and his colleagues consider the theory of forced holidays by an employer in exceptional circumstances to be illegal. “A company whose economic activity is declining cannot use short-term vacation fixing as an adjustment variable,” adds Christian Bruchez. In the event of a reduction in activity linked to the pandemic, it is advisable to use RHT, whose access conditions have been relaxed. ”
His reasoning is identical in the event that a boss refuses that an employee cancels vacations already fixed and which would fall during the coronavirus crisis: new dates must find the agreement of the employer and be compatible with the interests of the company. “
On the union side, we share this point of view. But we stress “the weakness of the protections in the event of dismissal”. Because the risk remains that a company will fire its employees in the event of disagreement over the holidays. “But that doesn’t mean that the employee should flatten out,” said Jean Tschopp, a lawyer at Unia Vaud. “We have to talk about it calmly and explain that the current situation considerably limits the possibilities of activities. This legitimizes any step taken by the worker. ”
Created: 03.31.2020, 8:27 p.m.
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