Practical tips
Job applications
In a job interview, prospective employers may only pose questions directly linked to the job being applied for. Questions about HIV infection do not fall into this category. If you are nevertheless asked if you are HIV positive, you may answer untruthfully. This is considered a case of self-defence.
Insurance
Upon commencement of employment, you will typically encounter two forms of insurance: daily-benefit insurance, which ensures the continued payment of your salary in the event of illness, and a pension scheme, which ensures the continuation of your standard of living in the event of disability or upon reaching retirement age.
Daily-benefit insurance
Employers are legally obliged to continue to pay your salary for a given period of time if you are ill. Most employers cover this risk with collective daily-benefit insurance in accordance with Private Insurance Law. The premiums for this insurance are split equally between the employer and the employee. Usually, the insurance pays 80% of the current salary up to a maximum period of 720 days in case of sickness.
Most collective insurances waive their right to require prospective employees to take a risk assessment, accepting all applicants irrespective of their state of health. A few do, however, carry out risk assessments (on the basis of a questionnaire) and exclude people with HIV or other illnesses from insurance coverage. The Insurance Contract Act obliges you to answer the insurer’s questions truthfully (unlike the situation when being asked by the employer, in which case you are allowed to lie). If you do not answer the questions truthfully and this comes to light, the insurer in question can terminate the contract and claim the reimbursement of any amount paid out, although he/she is under no obligation to reimburse any contributions made by you.
We recommend the following procedure, wherever possible, before finalising any contract:
- Ask your future employer – for instance during salary negotiations – about the company’s current insurance situation. Ask to read through the General Terms and Conditions of the daily-benefit insurance before finalising your contract. In this way, you can find out whether your employer has a collective daily-benefit insurance and whether it requires a risk assessment.
- Should a prospective employer not offer collective daily-benefit insurance, or if such coverage stipulates a risk assessment, you have the following options:
a. If you were covered by a collective insurance at your previous place of work and if this insurance company as well as the new employer’s insurance company have both ratified the Agreement on Free Movement among daily-benefit insurers (Freizügigkeitsabkommen PDF 43 KB), the prospective new collective insurance company is obliged to insure you, irrespective of your state of health. The transfer to the new insurance must be performed within three months after the date of termination of the previous insurance contract.
b. In case option ’a’ does not apply, it is often possible to remain with the daily-benefit insurance of the previous employer. Transferring from collective to individual daily-benefit coverage often does not require a health test. The premiums for individual coverage tend to be high, yet you receive the benefits from such insurance for loss of income due to sickness. Check the General Terms and Conditions of your previous employer’s insurer to ascertain whether such a transfer is possible.
Important: if you lose your job, your present insurance remains under obligation to concede such a transfer without a health test. As a rule, this transfer must be performed by you within 30 days after the employment relationship ends.
Pension scheme
Every employer is obliged to provide a company pension scheme for its staff. Contributions are shared equally between the employer and the employee. All employees earning more than CHF 20,520 per annum (as of 2009) must contribute to such a scheme. As such a pension plan is a compulsory insurance, everyone is taken up in the scheme unconditionally and irrespective of his/her state of health.
In most cases, additional pension funds exist alongside the compulsory scheme. These offer more extensive coverage and are set up on the basis of Private Insurance Law. For this reason such pension schemes have every right to ask questions pertaining to health matters in the supplementary sector, to which you as the insured party are obliged to reply truthfully. The pension fund will insert a proviso for a maximum period of five years for any illness relating to HIV. Should you for instance change your job after three years and again change pension schemes, the new provider can only insert a two-year proviso for the benefits agreed upon.
Employment law
Data protection
Your employer or your working colleagues have no right to information regarding your HIV status. This is not necessary, since there is no risk of infection from the performance of day-to-day work-related activities. Should you yourself decide to inform them of the fact, it is advisable to point out in advance that this information must be treated with the utmost confidence and only divulged to third parties with your explicit permission. This fundamental principle is safeguarded by the Data Protection Act.
Leave-of-absence management
Employers are legally obliged to grant employees the usual spare time and days off. These include, for instance, doctor’s appointments. If, however, you work in a firm with flexible working hours, the company may ask you to plan routine visits to your doctor during non-working hours. Should this not be possible or in an emergency, such leaves of absence from work do not need to be made up.
Employers should immediately be informed of any leave of absence due to sickness. Moreover they have the right (as a rule after three days of illness) to ask for a medical certificate. No diagnosis should appear on this certificate.
Protection from discrimination and "mobbing" (workplace bullying)
Legal protection from discrimination and "mobbing" (workplace bullying) in working life in
Legal protection also exists against unfair dismissal: should an employee be dismissed on the basis of a privacy feature such as HIV, this constitutes unfair dismissal for which the employer may be sued and have to pay up to six months of salary. The dismissal, although considered unfair, still remains in force.
Should an employer terminate an employee’s contract when he or she is unfit for work due to illness, the employee is protected under a so-called retention period of 30 days in his/her 1st year of work (but not during the initial probationary period), for 90 days from the second to the fifth year of service, and for 180 days from the sixth year on, during which the employer may not terminate the contract. Any such notice of dismissal is invalid. It is imperative to lodge a written objection to the dismissal with the employer within 30 days.