25 January 2022

Coronavirus - What is to be considered from an employment law perspective?

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Questions arising from the perspective of employers and employees

Post no longer relevant due to cancellation of COVID measures, but still relevant for issues related to the past.

The measures to combat COVID-19 are a constant up and down. What is certain is that the measures have been a companion for almost two years and are once again highly topical in view of the current record infection figures. The pandemic should, however, be taken as an opportunity for employees and employers alike to remember their rights and obligations. The impact of the coronavirus on public life is far greater than the one of past pandemic-like situations. It is impossible to predict with certainty how labour courts will judge various issues which may arise from this pandemic. But Swiss labour law already offers many answers. You will find the most important ones in this magazine article.

Since 22 June 2020, the Covid 19 Ordinance 3 regulates the measures to combat the corona virus, with the Covid 19 Ordinance Special Circumstances supplementing it with special measures. Both are constantly adjusted, whereby this contribution is based on the status as of 25 January 2022.

From the perspective of the employers

a) General obligations of employers

In principle, employers must take all necessary and appropriate measures to protect the health of their employees. They are legally obliged to do so. In order to maintain this duty of care, they have - depending on the situation - a very extensive right to pass directives to their employees. From the employer's point of view, it is first necessary to be aware of the rapidly changing situation. It is important to closely monitor the current situation internationally and throughout Switzerland and to decide on an ongoing basis whether directives are appropriate or whether further measures should be ordered. The (main) instruction of the Federal Council is the duty of the employer to enable his employees to work from home, provided that this can be implemented with a proportionate effort (cf. in detail the magazine article on the topic of home office during the pandemic).

If this is not the case, the STOP principle (substitution, technical measures, organizational measures, personal protective equipment) must be applied in the workplace. In addition to hand hygiene and keeping distance, this also includes the structure of separate teams and the wearing of masks even outdoors. In addition, masks must be worn indoors (including in vehicles) where more than one person is present. Exceptions to this are only provided for to a very limited extent.

The authorities responsible for enforcement (enforcement authorities under the Employment Law, Federal Law on employment and the Accident Insurance Law UVG) have the competence to verify compliance with the measures. They can also carry out checks at any time, whereby employers must grant them access to the premises and locations.

When issuing instructions, employers must take particular care not to order any measures that would violate the personality of their employees. For example, directives that interfere with the employees' right of self-determination with regard to their health are not proportionate. This would include a general compulsory vaccination. However, a vaccination could prove to be a proportionate measure for certain professional groups (e.g. doctors, nursing staff) due to the threat potential of an infection. Employers are then authorized to collect data on infectious diseases. Employees have a duty of disclosure and information in this regard. They must therefore inform their employer, for example, whether they came into contact with persons who have fallen ill. Employees must also be made aware of these obligations.

b) Obligations under Covid-19 Regulation 3

Particularly vulnerable employees are specially protected by COVID-19 Regulation 3. Such particularly vulnerable employees are pregnant women and adults who have not been fully vaccinated or have not recovered from COVID-19 and who also have certain preexisting conditions (hypertension, diabetes, certain cardiovascular diseases, chronic respiratory diseases, cancer, obesity, and individuals with diseases and therapies that weaken the immune system).

Employees who belong to this group must declare their special risk by means of a personal statement. Employers may request a medical certificate to this effect. The primary aim of the regulation here is to ensure that these persons perform their contractual duties, but from home. If this is not possible, employers must, in deviation from the employment contract, assign them equivalent substitute work that can be performed from home, with the same remuneration. Only if the presence of the employees at risk at the workplace is indispensable for operational reasons may they be employed on site. In this case, the workplace must be designed in such a way that any close contact with other persons is excluded or - where this is also not possible - appropriate protective measures are taken (STOP: substitution, technical and organizational measures, personal protective equipment). On site, too, an attempt should first be made to ensure that the employees carry out their usual activities. Only if this is not possible should they be assigned equivalent substitute work. Where employers take such measures, they must first consult the employees concerned.

Employees may refuse to take on the work assigned to them, but only if the employer fails to fulfill his legal obligations. In addition, employees may refuse to perform work despite the employer's fulfillment of his obligations if they consider the risk of contracting the virus to be too high for them for special reasons. In this case, too, employers may demand a medical certificate. Only if it is not possible to employ employees who are particularly at risk according to one of these variants, or if they justifiably refuse to take up work, will the employer grant them leave with continued payment of wages.

From the perspective of the employees

The counterpart to the duty of care on the part of the employee is the duty of loyalty to his employer. Unfortunately, many companies suffer from the current situation and have to cope with financial losses. Employees are therefore obliged to support the company as much as possible. In doing so, they must first of all comply with proportionate instructions from their employer. They should be aware that an instruction they would normally be allowed to ignore, may be appropriate in a pandemic situation. They may further be encouraged to exercise their rights with care (for example, when compensating overtime, see the FAQs). Of particular interest to workers are the circumstances under which they continue to receive salary even though they cannot work. First of all, a distinction must be made as to whether the hindrance to work is due to the employee's personal circumstances, or whether it is due to objective circumstances. In latter case, it must be examined further, whether the objective reason falls within the sphere of risk of the employer or the employee. The constellations are various. For example, if employees receive instructions from their employers, to stay at home or if they fall ill with the virus, their absences caused by this are excused and they are entitled to payment of wages according to the general statutory and contractual provisions. However, if public transport comes to a standstill and workers are no longer able to do their work, their absences are excused, but they would not be entitled to continued payment of their wages.

Employees affected by short-time working are allowed to take up interim employment. To do so, the employee must first obtain the employer's consent and inform the employer of the earned income during short-time work. It is important to note that work cannot be carried out for a third party if the employee is in breach of his duty of loyalty according to employment law (e.g. for a competitor of the main employer). In addition, the employee must remain easily accessible to the main employer and be quickly available for work again. Due to the current COVID situation, the Federal Council has decided to continue to apply the summated accounting procedure, so that income from interim employment will continue not to be counted towards short-time work compensation.

You can find our FAQs on quarantine and what needs to be considered from a labour law perspective here.