What I as an employer need to know about burnout
Burnout syndrome is widespread, not just here in Switzerland, but in many other European countries as well. In the past few years, the number of those suffering from burnout has been on a continual rise, and there is currently no end in sight for this trend. Besides immense psychological, physical, and financial strain for employees directly affected, such an illness also has an economic impact on companies and our society. This is because the absence and health-related loss in performance of the affected employee increase costs within the company while productivity declines.
We show you what you as an employer can do to prevent cases of burnout among employees and what legal implications may result from a burnout.
What can or must I do as an employer if employees turn to me and complain about a high level of work stress?
As soon as an employee turns to you or you learn in another way about an ongoing and excessive level of stress at work, you should respond as quickly as possible in an appropriate manner. This is because, as an employer, you have a duty of care for your employees and must give due consideration to their health. To protect their health and personal integrity, you must take the necessary measures that are an appropriate response to the excessive strain faced by your employees. What measures are necessary has to be clarified in each individual case. Potential solutions could include the following:
- Conduct an occupational healthcare evaluation (e.g. with Suva)
- Create an internal, specialized point of contact
- Adapt the employee's workload or grant unpaid leave (under the condition of employer consent)
- Increase staff resources
- Adapt internal processes and reallocate areas of responsibility
- Take specific, individual measures that are discussed together with the affected person
It is not easy to detect the signs of an impending burnout among employees at an early stage. You can find additional information on this subject as well as a checklist for line managers here.
Can I be held liable if an employee has a burnout?
Yes, in theory it is possible that you as an employer can be sued and may have to pay damages or satisfaction. For such a claim for damages or satisfaction to be successful, however, the claimant must prove that you breached your duty of care. A breach of the duty of care means that you had knowledge of the situation that led to the employee’s burnout. In other words, if you as the employer were not informed of the hazardous situation and also could not have found out in another way, then you cannot be accused of a breach of the duty of care. Specifically, this means that
- employees must proactively notify you regarding excess strain;
- the excessive strain was not detectable in another way, such as frequent illness-related absences;
- and that you did not fulfill your duty to clarify the situation and take action.
Even though the number of people suffering from a burnout continues to rise, there have to date hardly been any lawsuits in connection with burnouts due to a breach of the duty of care. The most significant reasons for this are that the affected persons are responsible for providing proof and it is often very costly and difficult to prove a breach of the duty of care.
Nevertheless, you as the employer you should take the feedback of your employees seriously and work together with them to quickly develop practical solutions. After all, with targeted health management, you can exclude claims payments and prevent a decrease in productivity as well as health-related absences and decreases in performance.
Also make sure that the incidents and measures taken are well documented so that you can prove if need be that you fulfilled your obligation of care and in which way.
What happens if the employee has been given notice and they have a burnout illness?
When it comes to burnout illnesses, the same provisions and prerequisites generally apply as with other illnesses. This means that if you would like to terminate the employment of an affected employee after the probationary period has expired, then the periods during which notice is barred apply. This is 30 days in the first year of employment, 90 days from the second year until and including the fifth year, and 180 days from the sixth year. If you issue termination within this period, it is invalid and must be issued again after the period has lapsed. If you issue termination after the period has lapsed, then it is legally valid.
Who pays the salary if an employee suffers from a burnout?
Here, too, the same regulations apply for continued payment of salary as with other illnesses. That means that if nothing has been otherwise agreed and no daily benefits insurance is in place, then Art. 324a para. 1 of the Swiss Code of Obligations (OR) applies in the event of illness. In this case, you must continue to pay 100% of the employee’s salary for a limited period. The condition for this is that the employment relationship existed for more than three months prior to the burnout. The “limited period” is defined based on the number of years of employment. In the first year of employment, for example, the obligation to continue salary payments amounts to three weeks. For the remaining years of employment, scales are used that have been derived from theory and legal practice. These scales vary according to region (Bern/Zurich/Basel scales). If needed, ask your legal protection insurance or the competent court what the scales provide for in your case.
If you have taken out daily benefits insurance, the continuation of salary payments will be different. However, the prerequisite is that this rule with the daily benefits insurance for your employees must be of equal value as if there were no insurance. This is the case if the following features are included:
- 80% continued payment of salary for 720 days in a period of 900 consecutive days.
- At least 50% of the premium are covered by you as the employer.
- A maximum waiting period of three days, or days without continued salary payment, at the beginning of each phase of illness (the waiting period until the insurance benefits are granted may vary since you as the employer are obligated to make continued salary payments during this time – waiting periods of 30, 60, or 90 days are generally agreed).
After the waiting period expires, daily benefits insurance covers continued salary payments in the agreed amount.