The employer’s duty of care: the current official rules
Pursuant to their statutory duty of care, employers are obliged to ensure their employees have a safe and healthy (work) environment. Employers should, therefore, stay informed about the coronavirus outbreak and the measures taken by the Swiss government.
The Swiss Federal Office of Public Health (FOPH) regularly publishes information about the current situation in Switzerland and a number of guidelines and rules are available on its website (including in English). Currently, the following rules apply:
In addition, the FOPH has issued a Manual for operation preparation that can be found here (available in German, French and Italian). Section 3 lists internal measures the employers should adopt for the protection of its employees.
The Swiss Federal Council has categorised the current situation as ‘special’ under the Swiss Epidemics Act. As a first measure for such ‘special’ situation, the Swiss Federal Council has banned large-scale events with more than 1000 participants until 15 March 2020; the cantonal authorities decide on events with fewer than 1000 participants. Workplaces (regardless of the number of staff) are not affected by the ban of large-scale events.
Employers should carefully monitor and comply with the rules and advice issued by the FOPH and/or the Swiss Federal Council.
Employers’ and employees’ specific rights and duties
Together with the FOPH, the Swiss State Secretariat for Economic Affairs (SECO) has issued a summary of FAQs answering the most relevant questions of employers and employees facing the corona crisis (available here in German, French and Italian).
The currently most frequent questions are set out below, with SECO’s answers and our further assessment of the situation.
1. Can an employer order its employees to work from home?
If the employment contract provides for the possibility of an employee working from home, the employer may require the employee to work from home until further notice. However, even if the employment contract does not provide for remote working, the employer may, in our view, unilaterally order an employee to work from home for a limited period of time, provided that the employee can reasonably be expected to do so in view of his or her personal circumstances at home (availability of a workplace, access to data, computer and mobile, etc.).
2. Is an employer entitled to ask employees to keep it informed about their personal travel?
In principle, employers are not entitled to ask employees to keep them informed about personal travel, because this travels is in the domain of the employee’s private life. However, in the event of a pandemic, we consider it would be reasonable to list certain areas that are specifically affected by the pandemic and to request employees inform the employer about any travels to these areas.
3. Can the employer impose medical checks (such as taking employees’ temperature) when accessing the office?
If an employee appears unfit for work, the employer is free to instruct him or her to leave the office or stay at home.
Under the current circumstances and as a consequence of the employer’s duty of care towards other employees, we are of the view that it is a justified and proportionate measure to request that the employees take their temperature when accessing the office and inform the employer of any increased temperature.
4. Are employees entitled to stay at home to look after their children because of school or childcare closures?
Employees are allowed to stay at home to look after their children if childcare facilities or schools close due to coronavirus. As a general rule, this absence is limited to three days, which is deemed sufficient to arrange for alternative care.
Although it is implied by SECO, we believe that it is debatable whether employees remain entitled to salary in this situation.
If employees are prevented from working for a personal reason for no fault of their own, for instance because they must care for their sick children, the employer must continue to pay their salary for a limited period of time based on Article 324a of the Swiss Code of Obligations. It is questionable if the closure of a childcare facility or school qualifies as a ‘personal reason’ within the meaning of the law. In the context of the swine flu, the Zurich Labour Court decided in 2010 that the closure of a childcare facility was not a personal reason for an employee. The employee was thus not entitled to continued salary payment. There is, however, no Supreme Court decision on this question.
5. Is there an entitlement to continued pay in the event of quarantine?
If an employee is quarantined by the authorities, he or she is entitled to continued salary payment within the framework of the law (for a ‘limited duration’ under Article 324a of the Swiss Code of Obligations).
If the employee is quarantined (but not sick) at his or her home or in another place where he or she is able to work, the employer can request the employee to work remotely despite the quarantine, but must equip the employee with the necessary working tools and materials.