FAQ Coronavirus and Employment Law

ATTENTION: The following FAQs were adjusted to the validity period of the Covid-19 Ordinance 2 and were therefore explicitly applicable for the period up to and including 21 June 2020! The Covid-19-Ordinance 2 is no longer in force.

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 (April 23, 2020), healthy employees who do not belong to a risk group may not simply stay away from work for fear of infection. On the other hand, employers have a duty of care to protect the health of their employees. Therefore, the instructions of the FOPH must be followed. This means that even employees who do not belong to a risk group should be encouraged to work via home office wherever possible. If this is not possible, the planning of staffing should ensure that employees do not have to commute in public transport during rush hours. For employees who belong to a risk group, the employer has been obliged to order work from home (“home office”) or take measures to ensure compliance with the federal recommendations on hygiene and social distance. Whenever this is not possible, the affected employees are to be dispensed under the obligation of wage continuation. Furthermore, the employer must take all reasonable precautions at the workplace to minimize the risk of infection. The extent of this measure may vary from one workplace to another.

 

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

A: The official closure of a business falls – in our view - within the employer's sphere of risk (business risk). Employees are therefore entitled to continued payment of wages. However, this view is disputed and has not been decided by courts. In any case, employees may be required to compensate overtime or the company may apply for short-time work to cushion 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 or 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 home office (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 (see our article on short-time work).

 

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 (“home office”), do I as an employer have to provide the equipment (e.g. laptop, printer, telephone) and pay for the telephone costs?

A: The situation here is a little more complicated and 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.

If the employee incurs necessary expenses (e.g. telephone costs), these must always be reimbursed and the costs cannot be passed on to the employee, not even with his consent. However, this only applies to "necessary" expenses incurred. Expenses are not considered necessary, for example, if the employee works from home (“home office”) at his or her own request, but would have a workplace available where these costs are covered by the employer. In the current situation, however, it is questionable whether home office - which should be arranged and carried out whenever possible - can still be regarded as voluntary and therefore not necessary If the employer instructs employees to work at home, the employer must also reimburse any necessary expenses incurred. These include, for example, additional telephone costs, unless the employer already pays a part in any case.

 

Q: Will the Federal Council's measures induced by the corona virus lead to an extension of the probationary period?

A: No, the probationary period will not be extended. The enumeration in the law, according to which an extension of the probationary period occurs if the probationary period is effectively shortened as a result of illness, accident or non-voluntary legal obligation, is conclusive. As far as can be seen, the Federal Council has not enacted any regulations stating that the probationary period would be extended due to the extraordinary situation. This would certainly have made sense, since without effective deployment, the employee's performance cannot be assessed. However, if an employee was actually ill, the probationary period would be extended.

 

Q: The start of work a new employee is imminent. 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: In agreement with the employee, this is possible without further ado. However, a one-sided postponement is generally not possible. If a probationary period applies (i.e. is not excluded in the contract), however, a dismissal is conceivable by applying the short probationary period notice period. This notice of termination can be given before the start of employment. However, it is controversial whether the notice period begins before the employee starts working or only when the employee starts working. In our opinion, the notice period begins with the receipt of the notice and the notice period can therefore already expire before the employee starts working. However, there is a residual risk that a court would decide otherwise and that wages must be paid for the period of notice even though the employee never starts the job. 

March 2020 | Authors: Michèle Stutz, Emina Husic

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