The latest Corona challenges

Abstract

Since March 2020, Switzerland has been dealing with labor law challenges related to the Corona pandemic. Now, new challenges have been added to the mix. On January 13, 2021, after consulting the cantons, the Federal Council extended and tightened its measures to contain the spread of Coronavirus as of January 18, 2021, in particular by converting its home-office recommendation into a home-office obligation. In this Bulletin, we address the implications of the stricter measures issued by the Federal Council.

In addition, following recent authorisations granted by Swissmedic to two Coronavirus-vaccinations, we address the delicate issue as to whether employers can oblige employees to be vaccinated.

The text of the new provisions is available under this link.

Requirement to work from home

What does the newly issued requirement to work from home entail?

According to the new measures issued by the Federal Council, employers have to ensure that their employees work from home as of January 18, 2021 wherever possible based on the type of activity and as long as this obligation can be implemented with reasonable efforts. The wording of the provision leaves a considerable room for interpretation to the employers. The Federal Council did not specify which efforts are to be considered reasonable. Therefore, it can be assumed that the reasonability of the efforts to be made depends on the circumstances of the individual case.

We interpret the requirement to work from home as follows:

  • If an employer has already implemented measures to enable its employees to work from home and the type of work allows it, the employer has to ensure that its employees work from home.
  • If an employer has not yet implemented measures to enable its employees to work from home, although the type of work would allow it, it must verify whether it could implement the necessary technical and organizational measures with reasonable effort. We are of the opinion that technical, organizational, as well as financial aspects have to be taken into consideration when analysing the feasibility of home-office for the employer. As long as the implementation of the necessary measures are for example associated with unreasonable high costs for the employer, the employer does not have to enable its employees to work from home. Whether the costs are unreasonable will depend from multiple factors, such as the size and the turnover of the business.
  • As long as at least one part of the work activity can be performed from home, the employer must ensure that the employees partially work from home.
  • If the type of work does not allow to be performed from home, the employees still can, respectively have to go to the office.

It should also be considered whether the employees should be informed and possibly consulted with regarding the measures to be implemented.

If home-office is not feasible with reasonable effort, the employer should record the various considerations and analyses made to prove its compliance with the Federal Councils regulations.

Does the employers have to cover the costs incurred by working from home?

According to the new provisions issued by the Federal Council, the employer does not have to cover expenses incurred due to the new requirement to work from home. As possible expenses connected with the requirement to work from home which the employer does not have to cover, the Federal Council lists electricity costs and rent.

However, the employer has to take the necessary organizational and technical measures to enable the employees to work from home. This means that the employer has to ensure that the employees are adequately equipped to carry out their work activities from home. Due to the employees’ duty of care and loyalty towards their employer, we are of the opinion that the employer can expect the employees to make their private technical equipment available for a reasonable period of time, e.g., until the necessary technical and organizational measures have been implemented.

What measures must employers implement to protect employees’ health in home-office?

Employers have an obligation to protect their employees’ personality rights. They have to take care of the employees’ health. This obligation shall, however, not be constructed in a general obligation to provide for ergonomic workplaces at the employees’ home within this short period of time. Since the measures issued by the Federal Council are only temporary and the employees also have certain duties of loyalty and care towards their employers, the employees can be expected to accept non-optimal ergonomic working conditions until the Federal Council’s measures are lifted.

Which rules apply to work from home?

Even though the employers are required to enable their employees to work from home, the employment contract and usual labor law provisions continue to apply to the employment relationship, e.g., data protection and confidentiality obligations, Sunday work and overtime regulations.

Do employers face any consequences if they do not abide by the home-office obligation?

Although the Federal Council’s regulations regarding the new labor law measures do not contain any direct liability of non-compliant employers to a fine, the competent authority may conduct inspections of businesses and locations at any time without prior notice. Employers must allow the competent authority access to their premises and locations. Should the competent authority issue instructions during their on-site inspections, these instructions have to be implemented immediately.

Do employees face any consequences if they refuse to go to the office despite home-office not being feasible?

If home-office is not feasible under reasonable efforts from the employer, employees, which are not qualified as employees at especially high risk, have to go to work. Failure to comply with the directive issued by the employer amounts to a breach of the employment agreement. Therefore, as ultima ratio, employees refusing to go to work could theoretically be terminated.

Measures regarding employees at especially high risk

On January 13, 2021, the Federal Council also issued stricter measures regarding the protection of employees at especially high risk. These measures are similar to the ones which were issued in Spring 2020, whereas the definition of employees at especially high risk has changed.

Which employees are considered to be at especially high risk?

According to the new provisions, the following people have to be considered as employees at especially high risk:

  • Pregnant women,
  • People who have not yet been vaccinated against the Coronavirus and in particular have hypertension, diabetes, cardiovascular diseases, chronic respiratory diseases, diseases and therapies that weaken the immune system, cancer and/or are obese.

Employees over 65 are not considered to be at especially high risk anymore.

What precautions do employers have to take with respect to employees at especially high risk?

Employees at especially high risk have the right to work from home. If their work activity cannot be performed from home, the employer has the possibility to assign them equal substitute work that can be performed from home under the same remuneration.

If, for operational reasons, the presence of employees at especially high risk on site is wholly or partially indispensable, they may be employed on site under the following conditions:

  • The workplace is designed in such a way as to exclude any close contact with other persons (e.g., by providing a single room or a clearly defined workspace for the employee).
  • In cases where close contact cannot be avoided at all times, additional protective measures have to be implemented according to the STOP principle.

If these requirements for work on site are not met, the employer has the possibility to assign to the employees at especially high risk of which the presence is indispensable on site equivalent substitute work on site under the same remuneration. The requirements for work on site listed above have to be met.

If it is not at all possible to employ the employee at especially high risk, the employer shall release them from their work obligations and continue to pay the salary.

Obligation to wear masks

The obligation for employees to wear masks indoor has been extended. The revised ordinance sets out that employees have to wear masks in any indoor space, including cars, where more than one person is present. This applies even if distancing between workplaces can be maintained. People that are unable to wear masks for medical reasons remain exempted from this obligation, provided that this is confirmed by a medical certificate.

Coronavirus-Vaccination from an employment law perspective

Two Coronavirus-vaccinations have been authorised in Switzerland very recently. Over the following months, it is expected that these vaccinations will be available at a large scale. In fact, the Federal Council aims to give everyone the possibility to be vaccinated by summer 2021. This raises the question as to whether employers have the right to request their employees to be vaccinated against the Coronavirus.

Can employers order their employees to be vaccinated against Coronavirus?

Opposing rights and obligations of employers and employees are to be weighed against each other to answer this question.

On the one hand, employees have the right to personal and physical integrity, which includes the right to decide whether to accept a physical intrusion such as a vaccine or not. On the other hand, employers have the right to give work-related instructions to employees (see Article 321d CO). They also have the obligation to protect all employees’ personality and health (see Article 328 CO) – and an obligation to their customers and potentially business partners or their personnel. These rights and obligations are not absolute and their application require an assessment in each particular case.

An obligation for employees to be vaccinated would have to be justified by particular reasons. No alternative, less intrusive measures should enable to achieve the same (preventive) result. Under that pre-condition, an obligation to be vaccinated could be justified in the following cases:

  • Employees who perform a function which requires vaccination because of Swiss or foreign regulation, such as truck drivers passing borders or flight staff;
  • Employees who are in contact with people at risk, such as medical and nursing staff;
  • Employees whose role requires travelling on a daily basis or having daily contacts with people traveling, such as flight attendants and airport personnel having direct contacts with travelers on a daily basis;
  • Employees whose role is essential to the business of the employer, provided that no other adequate measures can be taken to ensure ongoing business.

Can employers terminate employees who refuse to be vaccinated?

Failure to comply with the directives issued by the employer amounts to a breach of the employment agreement by the employee. Therefore, employees refusing to be vaccinated can be removed from their functions and placed elsewhere in the organization or, as ultima ratio, theoretically be terminated. However, considering the uncertainty around the possibility to make vaccination compulsory, employers would face a considerable risk of claims (see below).

Claims of employees who are terminated on grounds that they refused to be vaccinated

Employees could claim that the termination is abusive and request compensation of up to 6 months of salary (see Article 336a CO).

If you have any queries related to this Bulletin, please refer to your contact person at Homburger or to: