What happens if you ask Jurilo a very long and complicated question?
Even if you ask Jurilo a very long question, in most cases it will still provide a correct and clearly structured answer. However, we recommend not making things unnecessarily difficult for Jurilo and instead breaking complex issues into several shorter questions. Since you can ask an unlimited number of questions, there are no additional costs.
Example question to Jurilo from a lawyer who wanted to “test” what Jurilo really knows:
The daily sickness benefits insurer refuses to provide benefits for an employee who was given notice, released from work duties, and then fell ill. The insurer argues as follows (the policyholder is the employer we are advising):
Our position is based on the Federal Supreme Court ruling 4A_151/2021 of 09.09.2021, which is not merely the opinion of XYZ, but a final decision that the entire Swiss insurance industry can rely on. On 11.04.2025, our policyholder (hereafter: PH) terminated the employment relationship with the insured person effective 31.07.2025 and at the same time released him from his duty to work (waiver of work performance). On 14.04.2025, the insured reported sick and claimed incapacity for work. The daily sickness benefits insurance is a loss insurance. A real and verifiable loss must exist (Art. 1 ZB KTG, Edition 09.2021). In this case, however, no loss exists. Our PH had already waived the insured’s work performance until 31.07.2025. This situation is the same as in the Federal Supreme Court ruling 4A_151/2021 of 09.09.2021. Both the cantonal court and the Federal Supreme Court held that the policyholder suffered no loss for the period of incapacity during the release from work. Only after the release ended could a loss arise if the incapacity continued. We have also already assured you that we will pay for a proven incapacity extending beyond 31.07.2025 (see our email dated 21.07.2025). As no loss exists, we have no obligation to provide benefits during the original notice period, i.e., until 31.07.2025.
What can the employer argue in response (the goal is to secure payment of daily sickness benefits)?
Jurilo’s Answer:
The insurer’s argument relies on the principle of loss insurance and on Federal Supreme Court ruling 4A_151/2021. Nevertheless, from an employment law perspective and considering the contractual structure of a collective daily sickness benefits insurance, there are several grounds on which the employer can challenge the refusal:
1. Direct claim of the employee under collective insurance
According to Art. 87 VVG and Art. 112 para. 2 CO, an insured employee under a collective daily sickness benefits insurance generally has a direct claim against the insurer, even if the insurance contract is concluded with the employer. This applies in particular when the insurance provides for benefits in cases of illness-related incapacity for work and the insured event occurs during the contract term.
2. Insured event occurred – illness during release from work
The release of the employee does not mean that no incapacity for work can exist within the meaning of the insurance. What matters is whether the insured event (illness-related incapacity for work) occurred during the insurance coverage. That is the case here: the illness was reported on 14.04.2025, i.e., during the ongoing employment relationship and insurance coverage.
Release does not change the fact that the employee remains formally subject to the employer’s authority and in principle obliged to perform work — even if the employer waives it. The incapacity is therefore not hypothetical but real, since the employee would have been obliged to work if not sick.
3. Equivalence of the insurance solution and statutory salary continuation obligation
The employer may rely on Art. 324a para. 4 CO, which relieves it of the statutory salary continuation obligation if an equivalent insurance solution exists. This equivalence requires that the employee receives a benefit covering at least 80% of the wage loss in case of illness. If benefits are denied despite the requirements being met, the employer risks a subsidiary obligation to continue salary payments under Art. 324a paras. 1–3 CO.
Thus, the employer has its own interest in ensuring that the insurer pays, in order not to be held liable itself.
4. Purpose of daily sickness benefits insurance – protection of the employee
Daily sickness benefits insurance serves to protect the employee from loss of income due to illness. The insurer’s argument that no loss exists because the employer waived work performance misinterprets the purpose of the insurance. The loss is not only the employer’s financial disadvantage but also the employee’s loss of earnings, which the insurance is meant to cover.
5. Review contractual provisions
It should be examined whether the general terms and conditions (GTC) explicitly exclude benefits during release from work. If not, the employer can argue that coverage exists as long as the employment relationship continues.
6. Distinction from ruling 4A_151/2021
In ruling 4A_151/2021, the court denied coverage because the employer had no financial loss. That case involved a pure loss insurance where the employer was the sole policyholder. In the present case, if the employee has a direct claim (e.g., via assignment or contractual arrangement), the legal situation is different.
Conclusion and recommendation:
The employer can counter the insurer’s refusal by:
- Referring to the employee’s direct claim under Art. 87 VVG and Art. 112 para. 2 CO.
- Arguing that the incapacity occurred during an ongoing employment relationship, thus constituting an insured event.
- Pointing to the equivalence requirement under Art. 324a CO and the expectation that insurance benefits relieve the employer of its salary continuation obligation.
- Checking the GTC to see whether release is explicitly listed as an exclusion; if not, benefits are due.
- Distinguishing the present case from ruling 4A_151/2021, since the context is different (no direct employee claim, pure loss insurance in that case).
The employer should request that the insurer review its refusal in light of these points. If the insurer continues to deny benefits, it should provide a written, substantiated rejection citing the relevant GTC provisions. If necessary, legal clarification through court proceedings may be considered.
References:
- Art. 324a paras. 1–4 CO
- Art. 87 VVG
- Art. 112 para. 2 CO
