Compulsory to work from home or test concept?

Update 25 June 2021: As per 26 June 2021 there is no more duty to work from home - to the Press Release of the Federal Council

Since 31 May 2021, employers are exempt from the work from home compulsory if they implement a test concept.

For employers who decide to implement a test concept, the obligation to work from home will be changed into a recommendation to work from home. This means that employees who are particularly at risk must continue to be granted the option of working from home. The cantons regulate the details and requirements of the test concept. The canton of Zurich has developed a test regime based on a so-called pooled saliva PCR test. All information on participation, registration, procedure and what to do in the event of a positive case can be found here for the canton of Zurich. Repetitive testing in companies must fulfil the following requirements:

  • The concept ensures easy access to testing for employees.
  • Employers regularly inform their employees about the benefits of the tests.
  • All employees have the opportunity to test themselves at least once a week.
  • The conditions for the assumption of the costs of the tests by the Federal Government according to Annex 6 paragraphs 3.1 and 3.2 of the Covid 19 Ordinance 3 of 19 June are fulfilled (cf. here).

Many employers will have to assess whether the introduction of a testing concept is worthwhile. This magazine article provides an overview to help with this decision and to point out specifics and challenges related to the testing concept.

 

Q: Which employees may an employer test?

A: All employees must be given the opportunity to be tested. If employees are employed on a part-time basis and do not work on the day of testing, the employer must offer these employees the opportunity to be tested on a second day - their working day. The employer must also offer vaccinated employees the opportunity to be tested.

Only those who have recovered, i.e. those employees who have tested positive for COVID-19 in the past, should not/are not allowed to be tested three months after recovery. In this context, the authorities do not communicate uniformly when these three months start to run. According to the fact sheet of the Federal Council, these employees should not participate in the testing programme until 3 months after a positive test result. The Health Department of the Canton of Zurich, on the other hand, writes on its website that these employees are not allowed to take part in the repetitive testing in the first 3 months after the isolation has been lifted.

 

Q: Can the employer impose an obligation to test on employees?

A: No. There is no obligation to test.

Even if not all employees want to be tested, a company that has the authorisation and offers repetitive testing to its employees can change from the requirement to work from home to the recommendation to do so. Even those employees who do not want to be tested may come to the office. The only decisive factor is that the employer offers testing and participation in the repetitive tests is voluntary for the employees. Special constellations in which an employer's obligation to test is permissible under labour legislation are reserved.

 

Q: What happens if there is a corona outbreak in a company?

A: In companies where employees are tested in a systematic and repetitive manner, they are not required to be quarantined from their work or commuting to work if they have had close contact with a person who is ill or has tested positive, either on or off the premises. It is not necessary for a certain minimum proportion of employees to be tested. Nor is the exemption from the quarantine obligation dependent on whether the employee concerned participates in the regular tests.

This can lead to the paradoxical situation where employees have to be quarantined in private but can still come to the office for work.

 

Q: How can the employer determine whether employees have tested positive for COVID-19?

For employers, the most important thing is to know whether an employee has tested positive for COVID-19 in the last three months. To ensure that the test results are not falsified, we believe that the employer has the right to ask all employees whether they have tested positive for COVID-19 in the last few months and can even ask them to submit the laboratory findings to the pool manager (the person responsible for testing). This is the only way to determine whether someone should be excluded from testing.

However, this view is controversial and some people are of the opinion that the laboratory results cannot be requested. Rather, the correct information provided by the employees should be trusted.

  

Q: Is the employer allowed to ask whether his employees have been vaccinated?

A: This question is disputed. In principle, this information is not essential for returning to the office when a testing concept is introduced. However, it should be noted that the employer has a central responsibility for the health of his employees at the workplace. Some employers express the need to allow only vaccinated and recovered employees to return to the office for the time being - even when introducing a test concept. In view of this, the question of whether employees have been vaccinated is, in our opinion, permissible (Art. 328b CO). However, the opposite opinion is also expressed, according to which this question is considered inadmissible in principle, since it concerns the private sphere of the employees. So far, no answer can be derived from the law and case law.

From an employment law perspective, there is a risk that an employee who refuses to disclose the information regarding vaccination and who is subsequently dismissed (for another reason) may successfully claim that this dismissal was abusive. This would be the case if a court concludes that the question about the vaccination was not permissible and the employer cannot sufficiently demonstrate that the dismissal was for another reason (e.g. lack of performance).

 

Q: If an employer only allows verified vaccinated or recovered employees to return to the office, can he refrain from introducing a testing concept?

A: No. According to the authorities, the decisive factor is that repetitive testing is offered and that a testing concept exists. Even if no one makes use of it or is allowed to do so.

 

Q: Can an employer also waive the compulsory work from home instead of the testing concept as provided for by the respective canton if he requires employees to take a daily antigen self-test?

A: No. Rapid daily tests cannot replace the test concept. According to the information on the homepage of the Department of Health, however, self-tests can be carried out independently without a specialist.

 

Q: Can an employer additionally require all employees to undergo antigen self-testing - if the testing concept is in place?

A: In our view, if the employer provides these rapid tests, there is nothing to against this extra precautionary measure. However, employees cannot be obliged to take such rapid tests. It is therefore important that the return to the office is voluntary when this additional measure is introduced.

 

Q: Is there also a requirement to wear a mask in the company when a test concept is introduced?

A: In principle, yes. Provided that the employees return to the offices, the mask obligation still applies indoors at work everywhere where more than one person is in a room. This even applies where work colleagues who are in the same room can keep a large distance apart (e.g. in open-plan offices), they must wear a mask.

The only employees who are not required to wear a mask are those who work in a separate room or those who cannot wear a mask for safety or medical reasons. Employees who have been vaccinated or have recovered from COVID are also not exempt from the mask requirement (at least not yet).

In this context, the benefit of introducing a testing concept for employers is questionable. The aim of the current testing strategy is to carry out as many tests as possible throughout Switzerland. For employers, however, a testing concept means one thing above all: administrative effort, especially because of ambiguities due to contradictory information from authorities (how long am I not allowed to test people who have recovered and how do I find out?) and because of regular information about the advantages of testing.

However, it is important to keep an eye on the latest developments in this context. It is conceivable that the introduction of a testing concept for employers will be simplified or even completely abolished in the coming weeks and that, in particular, fully vaccinated and recovered employees will be allowed to return to the office even without the possibility of testing at the workplace. As soon as all persons willing to be vaccinated have been fully vaccinated, the FOPH says that the compulsory working from home will be converted into a recommendation to work from home for all companies - presumably without a testing regime.

Common and general questions related to the duty to work from home have been addressed in our magazine article “Home office during the pandemic: recommendation or duty? Challenges?”

June 2021 | Authors: Michèle Stutz, Emina Husic

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