Covid-19 and Particularly Vulnerable Individuals: A classification under labor law

In the Ordinance 2 (VO2) on measures to combat the coronavirus issued by the Federal Council on March 16, 2020, and amended on March 20, 2020, Articles 10b and c in particular are of major importance in terms of labor law. This introduces a new category of employees, the "persons at particular risk". People from this group of persons should stay at home and avoid crowds (Art. 10b para. 1 VO2).

Who are "particularly vulnerable persons"?

This category includes people 65 years of age and older and people who have the following conditions in particular:

• Hypertension
• Diabetes
• Cardiovascular diseases
• Chronic respiratory diseases
• Diseases and therapies that weaken the immune system
• Cancer

The term "in particular" expresses that this list is not exhaustive. The legal consequences for the group of persons at particular risk can therefore also be applied to other diseases, provided that these are classified as equivalent to the diseases according to Art. 10b VO2 with regard to the risk of severe Covid 19 disease progression. Since this is a medical issue, this assessment is the responsibility of primary care physicians. A challenging task, considering the consequences outlined below.

Adjusted duties of employers

The obligations of employers were adapted after only a few days in the newly formulated Art. 10c para. 2 and 3 VO2. In an amendment to the original text of the ordinance, which only provided for the options of "home office" or "dispensation with continued payment of wages" for persons at particular risk, employee protection was somewhat relaxed with the introduction of a third variant on the one hand, but at the same time the employer's duty of care was made more concrete.

The new version of Art. 10c VO2 provides for the following regulation:

• The employer shall enable employees who are particularly at risk to perform their work duties from home. To this end, he shall take the appropriate technical and organizational measures (Art. 10c para. 1 VO2). The principle of "home office first" is thus upheld, i.e. particularly at-risk persons should work from home whenever possible.
• In amendment to the original regulation, Art. 10c para. 2 of the Regulation was reworded on 20.03.2020. A new criterion has been introduced for those work activities which, due to the nature of the activity or the lack of feasible measures, can only be performed at the usual place of work (e.g. retail trade, cleaning, care). In these cases, the employer is obliged to "ensure compliance with the recommendations of the Confederation concerning hygiene and social distance by means of suitable organizational and technical measures" (Art. 10c para. 2 VO2).
  Here is an excerpt from the explanatory notes of the federal government (as of 24.03.2020): "For this purpose, plexiglass screens can be set up in retail stores, for example, to protect checkout personnel; disinfectants are also to be made available to employees where appropriate. Other reasonable work areas or fields can also be assigned to particularly at-risk persons, such as work in the back office area."
  In other words, provided the employer can guarantee compliance with these measures, there is basically nothing to prevent employees from continuing to work at their usual place of work. But here too - according to the explanations provided by the federal government - employers and employees are called upon to agree flexibly on practicable solutions that are in the interests of health and the company.
• If, in a specific case, a "home office" is not possible and the protective measures required in Art. 10c Para. 2 VO2 cannot be implemented either, employees who are particularly at risk shall be granted leave of absence by the employer with continued payment of their salary (Art. 10c Para. 3 VO2).

What does this mean in practice?

In addition to Art. 324 and 324a CO, Art. 10c para. 3 VO 2 creates a further exception to the basic rule "no work, no pay". In the foreseeable discussions about whether home office is possible or not, both employees and employers are challenged. In our opinion, home office should always be possible if the technical possibilities are available, if the work is not location-bound or can only be performed with special devices that are not available at home. Employees are asked to keep a sense of proportion and contribute as much as possible to ensure that the employer's operations can continue without restriction. For:

For the duration of the validity of the VO2, the employer is required to pay an unlimited 100% period of wages without receiving any work performance. This obligation can quickly threaten the existence of smaller companies in particular, which currently lack revenue in many cases.

Due to the wording "on leave", one could get the idea that the person concerned must draw (existing) vacation credits. This interpretation is hardly the intention of the legislator, who was not very precise in his wording. Instead of "leave of absence", it would be better to speak of "dispensing". Nevertheless, due to the current extraordinary situation, the doctrine assumes that a short-term order to take vacation should also be permissible.

It should also be noted that the Covid 19 Ordinance on Loss of Earnings, which was also issued on March 20, 2020, does not change the legal situation. Although Art. 2 para. 1 of this ordinance provides for a maximum entitlement of 10 daily allowances in the event of an interruption of employment "due to quarantine", this benefit is subsidiary to continued salary payments by the employer (Art. 2 para. 4). It is therefore not necessary to examine the question of whether "leave of absence" within the meaning of Art. 10c para. 3 VO2 would be equivalent to quarantine.

Medical certificate

The ordinance stipulates that the persons concerned assert their endangerment by means of a "personal declaration". The employer will usually accept this if he already knows about the health condition of the person concerned anyway. Incidentally, this is more often the case than one might think. But what happens if the employer is surprised by the employee's self-declaration and wants to check whether someone actually belongs to the group of persons at particular risk?

If an employee claims that he or she belongs to the group of persons at particular risk, the employer has the option provided for in Art. 10c Para. 4 VO2 of requesting a "medical certificate". It can be assumed that employers will make extensive use of this option. In terms of content, however, only the information as to whether or not someone is to be classified as a "person at particular risk" within the meaning of Art. 10b Para. 2 VO2 is permissible. Due to the protection of personality, there is no entitlement to more detailed information on the employee's state of health or more precise details of the illness.

Medical certificate vs. certificate of incapacity for work

In our view, the term "medical certificate" is somewhat unfortunate, as this term is normally associated with a certificate of incapacity for work. However, the medical certificate according to Art. 10c para. 4 VO2 is not a certificate of incapacity for work, but merely a confirmation of belonging to the group of "particularly endangered persons". Thus, it is merely a dispensation to work outside the home office and not a medically justified incapacity to work.

Initial feedback has shown that doctors do not always take this distinction into account and (additionally) also confirm an incapacity to work in the medical certificate, presumably without such an incapacity being present. The test question here would be, in our opinion:

"Would the patient (at special risk) be able to work in his or her usual occupation without Corona pandemic?" If yes, there is a "medical certificate" stating that he belongs to the group of persons at special risk. If no, a certificate of incapacity for work is issued.

Continuation of salary vs. daily sickness benefits

Daily sickness benefit insurers regularly define incapacity for work based on Art. 6 ATSG as "the full or partial inability to perform reasonable work in the previous occupation or field of activity due to an impairment of physical, mental or psychological health." This definition obviously does not coincide with the reasons that lead to the work dispensation due to the special risk situation. Therefore, the following applies as a matter of principle: Caution, the daily sickness benefit insurances do not have to pay for the continued payment of wages due to the work dispensation according to Art. 10c Par. 3 VO2. Employers should keep this in mind with regard to their liquidity planning, while employees should also do everything in their power to contribute to loss minimization.

The temptation is therefore relatively great to want to circumvent these risks with an ordinary certificate of incapacity for work (aka a sick note). However, consider the following two points:

• First of all, this means that people are "written off sick" who, from a medical point of view, are not at all unfit for work. The danger that "particularly at-risk individuals will continue to be (written) unfit for work even after the end of the pandemic should not be underestimated. After all, all of these people are suffering from an illness, and as long as their state of health does not improve, regaining the ability to work is not a foregone conclusion. This development is not desirable for the employee, the employer or the economy as a whole.
• In addition, the daily sickness benefit insurers will have to deal with a considerable number of cases that are "unjustified" from an insurance law perspective because there is no actual incapacity to work. In view of the wave of claims that is also likely to hit the daily sickness benefit insurers, it is to be expected that such "incapacities for work" will be subjected to closer scrutiny and that the obligation to pay benefits will be rejected. Then the costs for continued payment of wages will fall back on the employers, who may not have expected this.

Conclusion: Correctly classify particularly vulnerable persons

Restraint, generosity, care and a sense of proportion are indicated when dealing with particularly vulnerable individuals:

• Employee reluctance to self-declare. Don't take advantage of the situation. Unauthorized hazard reports pose an invaluable risk to employers. Help out where you can. Individual interests should take a back seat to the general interests of preserving our economic system, except in cases of special hazard as defined in the regulation.
• Generosity in assessing the extent to which home office is possible. Willingness of the employee to take on tasks which are not normally part of the employee's duties, but which can be performed by the employee from the home office. And this is independent of the requirements of the employment contract.
• Care and special diligence in testing and implementing organizational and technical measures to ensure compliance with federal recommendations regarding hygiene and social distance. The "particularly vulnerable persons" should be protected from infections so that potentially serious cases of illness and bottlenecks in health care can be avoided. In case of doubt, we believe that the work dispensation should be chosen.
• A sense of proportion on the part of physicians with regard to medical certificates and certificates of incapacity for work. First, physicians must be aware of this fundamental distinction and different legal consequences. Moreover, sick leave on the basis of the special risk pursuant to Art. 10b para. 2 V2, even though there is no incapacity for work, can lead to employers and employees being lulled into a false sense of security and assuming that the right to continued payment of wages is covered by the insurance. If such a claim is then rejected and the entire duration - which is not limited in time or is limited to the period of the extraordinary situation due to Art. 10c para. 3 VO2 - falls back on the employer, this can bring a company to financial ruin.

Authors:
RA Astrid Lienhart is a specialist lawyer SAV labor law and, in addition to her work as a lawyer in the Law Firm Legal Force in Zurich as an author and speaker. RA Kurt Mettler is managing director of the SIZ AGwhich specializes in care management. For years, both have maintained an intensive exchange on the difficult issues surrounding continued payment of wages in the event of illness.