18 January 2022

FAQ Coronavirus and Employment Law

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The variants of the coronavirus are spreading rapidly. This poses great challenges and raises questions for employers and employees.

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

FAQ on the topic of coronavirus:

Q: Are workers today allowed to stay away from work for fear of contagion?

A: According to the current situation (18 January 2022),employees are obliged to work from home pursuant to Art. 25 of the Ordinance on Measures in the Special Situation to combat the Covid-19 Epidemic (Covid-19 Ordinance Special Situation). Employers must ensure that employees can perform their work duties from home wherever this is possible due to the nature of the activity and can be implemented with a reasonable amount of effort. In addition, employers must - based on their duty of care and on the Covid-19 Ordinance Special Situation - protect the health of the employees. In this respect, the FOPH's directives on hygiene and distance must be followed. At the workplace, for example, each person must wear a face mask in all indoor areas (including vehicles) where more than one person is present. If it is not possible to work from home, employers must ensure that employees do not have to commute on public transport at peak times, arrive at the workplace in separate teams or wear masks in outdoor areas.

For employees belonging to a risk group the employer must also order to work from home on the basis of Art. 27a of the Covid-19 Ordinance 3 or take measures to ensure that the recommendations of the Federal authorities regarding hygiene and social distance are complied with. In cases where this is not possible, it must be examined whether the employee concerned can be assigned equivalent work that can be performed from home. Furthermore, the employees must be released from work with continued payment of wages if their health cannot be sufficiently protected when they are present at the workplace. Finally, the employer must take all reasonable precautions at the workplace to minimize the risk of infection. The extent of this duty varies from workplace to workplace.

Therefore, as long as employers comply with their obligations, healthy employees may not simply stay away from work out of fear of contagion.

Q: If my business is closed by order of the authorities, do I still have to pay wages?

A: In our view, the official closing of a business falls within the employer's sphere of risk (business risk). Therefore, employees are entitled to continued payment of wages. However, this view is controversial and has not yet been clarified by courts. In any case, workers can be encouraged to compensate for overtime, or the company can apply for short-time work to ease the effects.

Q: Can a company close its operations due to the coronavirus pandemic, even though it is receiving short-time work compensation for its employees?

A: If a company has to close its operations for economic and health reasons while it is receiving short-time work compensation for its employees, the company resp. its employees do not lose their entitlement to short-time work compensation

Q: Can a company that had to shut down its operations due to the pandemic and which employs seasonal workers also apply for short-time working compensation for these employees?

A: In principle, the employment contracts of seasonal workers are fixed-term contracts. It is normally not possible to apply for short-time work compensation for employees with fixed-term contracts. As part of the simplification and extension of short-time work compensation, the Federal Council has decided that, in this exceptional situation, employees on fixed-term contracts are also entitled to short-time work compensation. Therefore, even for seasonal workers with typically fixed-term contracts short-time compensation can be applied for.

Q: Can a company stipulate that employees must stay at home and this time is deducted from their holiday balance?

A: Unless otherwise agreed in the contract, the employer may in principle determine the point in time of the holidays. In doing so, he must take into account the wishes and needs of the employees. If the employer determines the time of the holidays, he must give sufficient notice. A notice period of at least three months applies.

This period of notice must always be observed even in the current situation. If a company decides at short notice that employees must stay at home, this time may not be deducted from the employees' holiday credit.

Q: Does this also apply if, due to the coronavirus, the order backlog is declining to such an extent that not all employees can be fully employed?

A: In this exceptional case, the employer can order compulsory holidays, which can be deducted from the holiday credit. However, they must be based on an urgent operational need. In some cases, the opinion is expressed that such holidays can be ordered at short notice. However, several courts have ruled that the three-month notice period must also be taken into account for compulsory holidays.

This means that companies should not reduce the holiday credit of their employees. Alternatives include arranging to work from home (where possible) or, if the order backlog means that it is no longer possible to keep all employees fully employed, considering short-time work, possibly in combination with compensation of overtime

Q: An employee has booked holidays which he cannot take because of the current situation. He would like to come to work anyway. Do I have to allow him to do so as an employer?

A: This question has not been conclusively clarified. In principle, however, the employer can insist on the already planned holidays as long as the employee is still able to relax, even if the employee cannot pursue his original holiday plan. In the current situation (no curfew), this should generally still be the case. This assessment could change if more extensive official measures are ordered.

Q: As an employer, can I pass a directive that employees must compensate for overtime if there is not enough work or if the company has to close down?

A: Overall, the compensation of overtime requires the consent of the workers concerned, both to the principle of compensation in general as well as to the timing and duration of such compensation. However, if there is not enough work or the company is even closed down, we believe that the employer can exceptionally order the compensation of overtime unilaterally. Employees must take the interests of the company into account. For example, it is not acceptable to save overtime for times when the business is running better again - this may be an abuse of rights.

Q: If employees work from home, do I as an employer have to provide the equipment (e.g. laptop, printer, telephone) and pay for the telephone costs?

A: A distinction must be made between the equipment and the expenses. Normally the employer equips the workers with the necessary equipment. Only where it is otherwise agreed or usual, the employees have to bear these costs.

Concerning the expenses, the Federal Council stipulated in the Covid-19 Special Situation Ordinance (version of January 2021), that employers who order to work from home based on this ordinance do not owe employees any compensation for expenses. This regulation is no longer included in the latest version of the Ordinance. It is currently unclear whether this is intentional and speaks in favor of a duty to assume costs or whether there has been an oversight.

For further information on the topic of home office, please refer to our article "Home office during the pandemic: recommendation or duty? Challenges?"

Q: Do the Federal Council's measures due to the Corona virus lead to an extension of the probation period?

A: No, the probation period will not be extended. The enumeration in the law, according to which an effective shortening of the probation period due to illness, accident or involuntary assumption of a statutory duty leads to an extension, is conclusive. As far as can be seen, the Federal Council has not issued any regulations stating that the probation period would be extended due to the extraordinary situation. This would certainly have made sense since the employee's work performance cannot be assessed without an actual assignment. However, if an employee were actually ill, the probation period would be extended.

Q: A new employee is scheduled to start soon. Due to the Corona crisis, we cannot ensure proper onboarding, or we do not know if we have enough work for him. Can we postpone the start of the job?

A: With the agreement of the employee, this is possible. However, a unilateral postponement is generally not possible. If a probation period applies (i.e., if such a period is not excluded in the contract), it is possible to terminate the contract by applying the short probation period notice period. This notice can be given before the employee takes up the job. However, it is disputed whether the notice period begins before taking up the position or only when the position is taken up. In our opinion, the notice period begins with the receipt of the notice and the notice period can therefore expire before the employee takes up the position. However, it cannot be excluded that a court would decide otherwise and that wages must be paid for the period of notice, even though the employee never takes up the job.