The WHO has classified the COVID-19 outbreak as a pandemic. There are increasing reports of companies implementing "split-operations", mandatory home office for everyone or flexible work time models ad-interim. As an HR professional, you are now confronted with a variety of questions about your organization’s rights and obligations in relation to your people. At the same time, you need to know how to manage the current crisis and, ultimately, protect your employees, business and reputation effectively and in accordance with relevant laws.
Employers have a duty of care towards their employees and thus are legally obliged to take all necessary and appropriate measures to safeguard their employees’ health. To achieve this, the employer has an extended right to give instructions to employees. We discuss your most pressing questions below.
General employer obligations
What general obligations do employers have to observe in relation to the virus and their workforce?
The employer is obliged to carefully observe the development of the (international and national) situation and to apply and adjust measures, accordingly. In particular, the directives and recommendations of the Swiss authorities should be observed. Although the Swiss authorities have not yet instructed companies to apply concrete measures, this would, at present, mean that employers should:
- Ensure a safe working environment
- Instruct employees to comply with hygiene measures (washing hands, disinfecting work spaces and devices etc.)
- Inform / remind employees of such measures repeatedly (e.g. by email)
- Remind employees to stay at home in case they suspect exposure or discover symptoms of an infection, or have recently returned from a risk area or belong to a risk group.
It is also highly recommended that employers consider further instructions in good time. These could include measures such as home office and teleconferencing or the like to replace in-person meetings, etc.
The federal authorities offer further information and a FAQ regarding pandemic situations (including a pandemic plan handbook) on their websites: SECO & FOPH
Can we ask our employees to work from home?
Yes, at least for a limited period of time. In any case, if the employment contract or any employment regulations (e.g. a home office policy) signed off by the employees provide for such option. Given the present unusual circumstances it is likely that even in the absence of such contractual clauses, the employer is entitled (if not even obliged) to instruct its employees to work from home for a limited period of time. This is, however, based on the provision that it is tolerable for the employees to work from home (depending upon type of work, access to data and availability of workspace and technical equipment).
The employer may contractually oblige the employee to use his / her personal work equipment for the benefit of the employer and without compensation. However, in the absence of such contractual agreement the employer is obliged to appropriately compensate the employee if he / she has to use personal work equipment. Expenses occurring in such a context must be reimbursed by the employer.
Please note that home office work could lead to unwanted creation of a taxable permanent establishment of the organization at the place of the home office(s). Moreover, for cross-border commuters there may be implications in terms of social security and individual tax positions.
What if an employee does not show up at work because he / she is afraid of getting the virus on the commute or at work?
Employees may not stay at home without the employer’s consent (e.g. because they are scared of getting infected) unless official instructions have been issued by the authorities stating they may do so. Remember: As of 12 March 2020 no such official instruction has been given.
However, if the employer fails to implement the necessary measures to ensure a safe working environment, the employee may have a right not to come to work. In such cases, the employer is obliged to continued payment of salary.