As of today, employers are authorized (but not required) to ask their employees to show their Covid certificate and to process the related information if this is necessary to (i) define appropriate protection measures or (ii) implement a testing plan within the company (art. 25 para. 2bis of the COVID-19 Special Situation Ordinance).

According to the guidelines published by the State Secretariat for Economic Affairs SECO, employers in Switzerland who wish to introduce Covid certificate verifications must consider the following:

• Purpose of the Covid certificate verifications: Covid certificate verifications are one of the measures employers can use to implement the necessary protection measures based on the company’ specifics or a testing plan. For instance, Covid certificate verifications may be used to limit the access to the cafeteria or the number of employees in conference rooms, to restrict contact with customers, to enforce particular restrictions based on the office setting, to change composition of teams, or to lift the obligation to wear a mask in the workplace.
• Data protection: any verifications need to comply with general data protection principles, especially data minimization. Consequently, unless employers need the (standard) Covid certificate, they should only require employees to show the Covid certificate «light», which does not contain any health data.
• Adequate protection measures: Covid certificate verifications do not relieve employers from their obligation to implement adequate protection measures based on the STOP principles (i.e., Substitution, Technical measures, Organisational measures, and Personal protective equipment). As such, the rules regarding hygiene, ventilation, social distancing etc. remain in force. Similarly, working from home remains recommended where possible.
• Information and consultation: employers must inform their employees in writing and consult the employees’ representatives or the employees (if there are no employees’ representatives) about their plan to introduce Covid certificate verifications and the measures resulting from such verifications. In our view, the consultation process includes the right of the employees to comment on the contemplated measures, to make alternative suggestions, and to be informed about the employer’s decision.

If the above guidelines are complied with and the employer allows employees to be tested at the employer’s expense, employers can request their employees to show their Covid certificates («light») and return to work at the office. Failure of the employees to comply with such instruction may in our view lead to appropriate disciplinary measures. The special rules regarding employees at high risk remain reserved.