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Working in the time of the Coronavirus

Working in the time of the Coronavirus

Working in the time of the Coronavirus

Adrian Tüscher | Partner,

Background

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

Pandemic plan

Should we have a pandemic plan for our company?

The Swiss federal authorities recommend (status: 12 March 2020) companies to implement a pandemic plan without delay. The federal pandemic plan handbook provides a (legal) basis and is available in German, French, Italian and English.

Home office

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.

Remark:
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.

Employee no-shows

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.

What happens if an employee has to look after children because schools / daycare centers are closed down by the authorities?

It is generally considered acceptable for an employee to stay at home for a few (typically 3) days. By then the employer may expect the employee to have found alternative childcare solutions. Thereafter the employee can no longer claim days off for such childcare. Therefore, any additional day would have to be considered a vacation day to be taken against the employee’s open vacation entitlement. The days could only be spent at home if the employer agrees. If the employee refuses to return to the office, the employer can impose disciplinary measures or even terminate the employee’s employment contract.

What if an employee is unable to return from vacation on time due to cancelled flights?

Although this may not be the employee’s fault, in such situations the employer is not obliged to continue paying any salary to the employee until he / she returns to work.

Quarantine

What happens if employees are under quarantine and therefore cannot come to work?

If quarantine was instructed by an authority but the employee is not sick and if it is not possible for the employee to work from home, it must be assessed, individually, whether the employer is obliged to continued salary payment.

Infected employees

What happens if an employee becomes infected with the virus?

In this unfortunate scenario, the employee may and must stay away from work and is entitled to sick pay in accordance with Swiss law (Art. 324a Code of Obligations) or prevailing sick pay insurance.

Given the current circumstances, the Federal Council recommends waiting at least 5 (rather than the ordinary 3) days before asking for a medical certificate.

Travel restrictions

Can the employer impose travel restrictions?

Yes, the employer may restrict / refuse business travel and may also ask employees not to travel to certain regions for private trips. If the employees travel to high risk areas anyway, employees may in general be asked to stay at home for a limited period after their return to Switzerland.

Whether the employer is obliged to continue salary payment in such situations even if an employee e.g. may not work from home must be assessed on a case-by-case basis.

Urgent vacation / paused operations

May we ask our employees to take vacation, and can we close down our premises for a few weeks?

The employer is entitled to instruct the employee to take vacation. However, the employer is obliged to take into account the employee’s wishes in respect to the time and duration of the vacation. Usually, the employer has to give instructions to take vacation about three months in advance. Thus, legally, reluctant employees may basically not be forced to take vacation, however, in the present circumstances, exceptions may be permissible.

Temporarily closing down the premises (i.e. asking employees not to work at all, including from home or elsewhere) in absence of authority orders would lead to the employer’s obligation to continued salary payment.

Overtime requests

May we ask our employees to work overtime?

Yes. If overtime work is an operational necessity and if it is tolerable for the employees, employees may be instructed to work overtime in line with the statutory (maximum) working time provisions.

Short-time working ("Kurzarbeit")

Can we introduce short-time working and ask for compensation ("Kurzarbeitsentschädigung") due to COVID-19?

No, it is not possible to refer generally to COVID-19 as the basis for such a request. Rather, it is necessary to show that the expected decrease in orders / work is directly linked to the disease. In other words, it comes down to negotiations with the cantonal authorities, which may apply different practices in the different cantons.

On the other hand, if, for example, the company has to be closed down due to an authority order and loses orders / work as a direct result thereof, the company may request short-time working compensation.

Further information can be found here in German, French and Italian.