Coronavirus: labor law issues

According to the Swiss Code of Obligations, employers have a right to issue instructions to their employees, but also a duty of care. This must be observed all the more in connection with the Corona crisis.

Finding reasonable measures for employees

Based on the duty of care (OR 328 para. 2), the employer must take reasonable measures to protect the health of employees. This also includes self-quarantine if an employee has returned from a risk area. Based on the right to issue instructions (OR 321d), the employer may order teleworking or home office. In this case, the employees must follow such instructions. It is also possible to order that overtime or overtime must be compensated or vacations (OR 359c) must be taken, whereby in the case of compulsory holidays the interests of the employee(s) must be taken into account by the employer. In these cases, the full salary is owed (OR 324 para. 1). In the case of compensation for overtime and extra hours, the employee's consent is required. In principle, the working hours apply in accordance with the law. In principle, the employer can also order a vacation ban, as it can determine the time of the vacation. The employee must be heard and his or her wishes must be taken into account. However, the postponement of already agreed vacations is only justified for serious reasons. Any compulsion to take unpaid leave is null and void. Company vacations are also conceivable, although these must be announced at an early stage (at least 14 days) in advance.

Labor law issues relating to continued payment of wages

If an employee falls ill, the company is obliged to continue paying wages (OR 324 para. 1). If the company has daily sickness benefits insurance (KTG), this takes effect after expiry of the contractually agreed waiting period (usually 30, 60 or 90 days). If no daily sickness benefits insurance is available, the duration of the continued payment of wages is based on the existing scales (Berne, Basel, Zurich scale). If the employer waives the employee's right to work, the agreed salary must continue to be paid. An ordered self-quarantine cannot be settled via the daily sickness benefits insurance, as there is no case of illness. The same is the case if the competent authority should order a quarantine measure against an employee in accordance with Art. 35 Para. 1 lit. a EpiG (Epidemics Act). If the employee wishes to be absent from work of his or her own accord, there is no entitlement to a salary for the period of absence.

Also in the following cases the salary is due (during limited time, OR 324a):

• The employee falls ill during the vacations and is therefore unable to travel.
• The employee falls ill with coronavirus during the vacations and is therefore unable to travel.
• The operation has to be stopped due to delivery bottlenecks of the supplier.
• The employee cares for a child suffering from coronavirus at home (Art. 36 ArG).
• The employer sends the employee home or closes the company as a precaution.
• The employer refuses to take protective measures and apply hygiene rules.
• Schools and kindergartens are closed by the authorities. The employee must take care of the children (ZGB 276).
• The company is closed by order of the authorities. However, the employee may be obliged to make up the "missed" working hours on the basis of his fiduciary duty.

Wages are not owed in the following cases:

• The employee cannot return from vacation because the authority responsible at the place of vacation does not allow the employee to leave or closes the border (force majeure).
• The employee is a fearful person and refuses to work out of caution because he or she might be infected (refusal to work).
• The employee cannot come to work because public transport is reduced or discontinued (take other means of transport). However, if the work can be done from home (telework), the salary is due.
• The employee does not send his or her child to the daycare center out of fear, but looks after it at home and therefore has to stay away from work.
• The (entire) residence of the employee is quarantined.

Short-time work

SECO has instructed the cantons to examine applications for short-time work with regard to Covid-19. If the competent authority orders the closure of the company or prohibits access to certain buildings or areas, it must be examined whether short-time work compensation can be claimed. Short-time work must also be examined by those companies that cannot order teleworking due to their business activities. It should also be noted that in the case of flextime, appropriate regulations must be in place, as well as the existence of a time recording system.

Further, the following cases are to be examined:

• employees cannot keep to their working hours because transport restrictions make access to the place of work difficult;
• necessary raw materials/operating supplies are not available due to import/export ban;
• Supply difficulties of raw materials and supplies;
• Interaction of various factors, due to the pandemic, leading to a cessation of operations;
• Reduction in working hours by official order;

Short-time work compensation cannot be claimed if employees have to care for their children at home due to circumstances (e.g. closed daycare centers).

The information given here is based on a leaflet published by the Swiss Trade Association sgv. For further information on labor law issues, pandemic plans, health protection, etc., we refer you to the SECO, BAG and other federal agencies.

• https://www.seco.admin.ch/seco/de/home/Arbeit/Arbeitsbedingungen/gesundheitsschutz-am-arbeitsplatz/Pandemie.html
• http://www.seco.admin.ch/neues-coronavirus