Newsletter: Obligation to continue paying wages in cases of addiction

In its decision BGer 4A_221/2025 of September 11, 2025 (intended as a landmark decision) published shortly before the end of the year, the Federal Supreme Court addresses the question of whether there is an obligation to continue paying wages in cases of alcohol addiction and what the legal situation is when there are several reasons for an employee being unable to work. The decision caused a stir in the media.

Facts of the case

An employee had been employed as a service technician since the beginning of 2007. At the end of September 2022, he caused a traffic accident while heavily intoxicated. As a result, his driver's license was revoked and he was convicted. The employee was 100% unable to work from the day of the accident until the end of January 2023 as a result of a diagnosed alcohol addiction and the associated inpatient treatment. The Federal Supreme Court had to decide whether the employer was obliged to continue paying wages.

Obligation to continue paying wages in the case of alcohol addiction?

In order for an employee to be entitled to continued payment of wages, the employee must be prevented from working by personal circumstances for which he is not at fault, such as illness, accident, legal obligations or public duties (see Art. 324a para. 1 OR).

There is considerable controversy in legal doctrine as to whether the inability to work due to alcohol or drug addiction is considered to be through no fault of the employee within the meaning of this provision. Put simply, according to case law on disability insurance, an addicted person was considered to be responsible for their own condition. This case law changed in 2019. Since BGE 145 V 215, addiction syndromes that have been properly diagnosed by a specialist cannot be denied any relevance under disability insurance law from the outset. The Federal Supreme Court has now applied this case law to employment contract law (Art. 319 ff. OR): Accordingly, alcohol and drug addiction are now considered illnesses, whereby even so-called primary addictions, i.e., those without a preceding underlying mental illness, are no longer considered to be the fault of the employee from the outset. Rather, the specific circumstances of each individual case must be assessed to determine whether an inability to work due to alcohol or drug addiction is through no fault of the employee. In principle, no fault can be assumed if someone “slips imperceptibly into an ever-deepening dependency over a longer period of time” (BGer 4A_221/2025 of September 11, 2025, Cons. 2.3.1.). In the case at hand, it was undisputed that the employee's alcohol addiction qualified as an illness.

Obligation to continue paying wages in the event of multiple reasons?

However, there was disagreement as to what applies in the event of multiple reasons for incapacity to work. The employer argued that the employee was indeed prevented from performing his work due to illness as a result of his alcohol addiction. At the same time, however, he was also prevented from performing his work as a service technician in the field because he knowingly and wilfully drove a motor vehicle while intoxicated at the end of September 2022 and, as a result, his driver's license, which he needed to fulfill his employment contract, was revoked. The Federal Supreme Court does not share this view:

It first recalls the existing case law (BGer 4A_232/2019 of November 18, 2019, Cons. 3.2.2), according to which the obligation to continue paying wages presupposes a natural causal connection between the reason for the inability to work and the failure to perform work. Therefore, if there are several reasons for an employee's inability to work, it must be assessed for each period of time which reason prevented the employee from performing his or her work and whether the respective reason is considered to be the employee's fault or not (Federal Supreme Court 4A_221/2025 of September 11, 2025, Cons. 2.3.3.). In the case at hand, there were no such overlapping and independent reasons for inability to work. Without the employee's advanced alcohol addiction, the traffic accident and subsequent treatment would not have occurred. The withdrawal of the driver's license therefore did not change the existing inability to work due to illness. In other words, the withdrawal of the driver's license was not an independent reason for preventing the employee from working, but “another link in the causal chain” (BGer 4A_221/2025 of September 11, 2025, Cons. 2.3.4). The Federal Supreme Court thus affirmed the employer's obligation to continue paying wages. It left open the question of whether the revocation of the driver's license alone could be considered an impediment to work under Art. 324a para. 1 CO.

Conclusion

The latest ruling has implications beyond the obligation to continue paying wages (Art. 324a para. 1 CO) in that it will have to be considered for questions relating to the protection against dismissal: the law grants employees after the probation period has expired protection against dismissal while the employee through no fault of his own is partially or entirely prevented from working by illness or accident (cf. Art. 336c para. 1 lit. b CO). Whether the employee is prevented from working through no fault of their own due to illness or accident is assessed according to the same criteria as for the obligation to continue paying wages. The same concept of fault therefore applies. However, the significance of the latest court decision should not be overestimated: on the one hand, alcohol and drug consumption among younger people is fortunately declining. On the other hand, despite the decision, a case-by-case assessment will still be necessary.