• Adrian Tüscher, Partner |

At present, we are all witnessing the largest vaccination exercise in Swiss and even global history. It is another important element to finally bringing COVID-19 to its knees. However, the option for individuals to get vaccinated comes along with a number of questions with regard to employer and employee rights and duties, the most pressing of which shall be answered hereafter:

Can Swiss employers demand that their employees get vaccinated?

In Switzerland, there is currently no general legal obligation to be vaccinated, and no such obligation is foreseeable for COVID-19 as the ethical principle of self-determination takes precedence.

However, an employer has a legal duty to protect its employees and, in this context, also the right to issue corresponding instructions or directives on workplace behavior. Thus, basically an employer could demand a vaccination from its employees but the right to issue instructions is limited by the protection of the employee's personal freedom. Demanding a vaccination definitely encroaches on personal rights and can therefore only be justified by a significant operational interest.

In other words, employers can only urge employees to get vaccinated if they are in a business respectively role where a vaccination is necessary and there is no home office option. This is mainly the case where employees professionally have physical contact with people in risk groups, such as in health or elderly care. However, this rule may also be extended to other industries where employees may be in touch with vulnerable people, such as the travel/tourist industry, universities or schools, grocery stores, hairdressers or fitness studios.

But even in such exposed industries, an employer cannot legally extend its demand to family members of the employee.

What if employees do not follow an employer’s vaccination instruction?

In a business where a vaccination is required in the above sense, the employer may warn employees who ignore a vaccination requirement. If made in writing and against written acknowledgment of receipt following a communication and discussion with the employee, the warning may also be combined with a threat of termination without notice in case of repeated refusal.

Instead of or in addition to this, an employer may also consider to release recalcitrant employees from work temporarily. As a last resort, an employer could also consider dismissing recalcitrants with due notice without risking being accused of an abusive termination. In the past, for example, Swiss courts have deemed dismissal permissible when medical personnel did not want to be vaccinated against influenza or hepatitis B. However, it must be examined why employees refuse the vaccination or whether a refusal may be justified.

Of course, the situation is different if an employee wants to comply with the vaccination order but cannot do so (immediately) for reasons that are not his/her fault. An example would be because he/she is not yet eligible for vaccination in his/her canton or the next possible vaccination date is only available in a few days or weeks. In this case, the employee cannot be accused of breaching any employee duties in that period and therefore cannot be legally threatened. In such a case, however, the employer may want to urge employees to remain in home office until after the vaccination date or, if working from home is not possible or reasonable, to release them from their work duties with continued payment of salary. In other words, the vaccination instruction only becomes applicable as soon as the vaccination is reasonably possible.

In a business/role where no vaccination is required in the above sense, the demand to get vaccinated is inappropriate. Thus, an employee may refuse to follow such instructions without running the risk of breaching employee duties. Consequently, a termination by the employer for refusing to be vaccinated would be considered abusive. However, what may be permissible are instructions or privileges for vaccinated employees, such as for example that they are allowed to return to the office (sooner) or have lunch in the company cafeteria or even attend an employee event.

Can an employer refuse to pay employees who do not follow a legally justified vaccination instruction?

Swiss labor law does not allow the waiving of wage payment because of a refusal to comply with employer instructions as long as the refusal does not result in what Swiss labor law qualifies as a self-inflicted incapacity to work. In our opinion, this is not the case if employees fail to get a COVID-19 vaccination. It is therefore against the law to refuse to pay wages for resisting against such instructions.

Can an employer make vaccination mandatory by including a respective duty in employment contracts?

Generally, an employer cannot make vaccination mandatory by simply including an obligation in the employment contract. Nonetheless, if accepted by the employee such an inclusion would mean more leeway for the employer. In other words, (slightly) lower requirements might be placed on the necessity required to justify the encroaching of the employee’s personal freedom. Nevertheless, a vaccination obligation must always be functionally related to an individual’s tasks as well as objectively justified.

For the sake of transparency and to avoid conflict, it is recommended to explicitly include a vaccination duty in the employment contract in a business or for roles where vaccination is a necessity (i.e. because of contact with vulnerable groups).

Be aware, however, that employers cannot just add a vaccination duty to current employment contracts unilaterally. Rather, the explicit consent of the employees concerned would be required. If an employer sought such consent through a termination for the purpose of amending the terms of the employment contract (German: Änderungskündigung), it would run the risk of entering into an abusive termination and, if the trigger thresholds set out in Article 335d of the Swiss Code of Obligations were met, it would have to duly follow the rather cumbersome mass dismissals rules and process.

In any case, including a vaccination obligation in employee regulations or any kind of “general terms of employment” alone would not be legally sufficient to be able to enforce the vaccination requirement unless the employee’s attention is explicitly drawn to the respective clause of such a “side document” within the (main) employment contract and the employee explicitly consents to it.

Is time used for vaccination work time?

If the employer orders the vaccination, whether justified or not (see answer to very first question further above), the time for vaccination must be considered working time in the sense of Swiss labor law. In reverse, time spent on a voluntary vaccination (i.e. the employer has not explicitly instructed it) cannot be claimed as working time by employees, at least not if a vaccination is not a necessity (in the sense of the answer to the very first question further above).

Can employees charge the employer for the vaccination costs?

The same considerations apply as for the work time qualification. Therefore, if an employer requires its employees to be vaccinated, the related cost must be borne by the employer. In reverse, in the case of voluntary vaccinations related cost cannot be reclaimed by the employee, at least not if a vaccination is not a necessity (in the sense of the answer to the very first question further above).

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