Coronavirus – challenge for employers and employees

The novel coronavirus presents a major challenge for employers and employees alike, and is giving rise to many labor-law-related questions.

The answer in detail
Updated on 13.07.2020 The novel coronavirus presents a major challenge for employers and employees alike, and is giving rise to many labor-law-related questions. MyRight has compiled a list of the most important questions and provides the answers. - Can I shut down my company in the event of a pandemic and declare this as company holidays during the absence of my workforce? No, this is not possible, although you as an employer are entitled by law to determine when your employees take vacation. But you must also listen to your employees and take their wishes into account. Your employees also have a right to early notification of any mandatory vacation you impose (generally three months in advance). - Can I impose a vacation ban at short notice for my company in the case of a pandemic? You as the employer have the general right to determine when your employees take vacation (see previous question). But you must also listen to your employees and take their wishes into account. Your employees also have a right to early notification of any mandatory vacation you impose (generally three months in advance). Postponing vacations that have already been approved is, however, justified if there are serious grounds for doing so. In the case of such an urgent and unforeseen operational need, your employees must accept the change to their planned vacation dates. You must notify your employees as quickly as possible of such a postponement. You as the employer must, however, pay for any losses incurred, such as the cost of cancelling a trip. - Can I force my employees to have a flu vaccination? No, there is currently no compulsory vaccination in Switzerland. Even in the case of a pandemic, it will probably be difficult for you as an employer to enforce a mandatory vaccination. - What are the consequences for the continued payment of salaries if I have to shut my company down by order of the authorities? There is controversy in the academic world as to who bears the operational and economic risk in such constellations. Since such a constellation has never occurred before, there is no case law. It is not clear whether the employer must continue to pay the wage or not. Refer employers to short-time work! Under certain circumstances, the employee may be obliged to make up for "missed" working hours due to his or her duty of loyalty. - The virus is spreading rapidly and I am afraid of the consequences for my business if someone contracts it. I am thus considering a total or partial shutdown of my company. What are my obligations as employer? What does this mean for my employees? In this case, you are obliged to continue to pay the salaries of the employees in question. Your employees are not obliged to make up for the working time (except in the case of very short-term company shutdowns). Your employees must accept a deduction from their salaries of any amounts they save as a result of being prevented from working or that they earn by performing work elsewhere. - Do I as a company have to buy face masks for my employees and their families and/or household members or can I demand that my employees buy these themselves? According to the Employment Act, the company as employer is obliged to provide its employees with reasonable protection while they are at work (see Ordinance to the Employment Act 3). As the risk of being infected in a pandemic is not the same everywhere, wearing a hygiene mask (Type II or Type IIR surgical mask) is generally not recommended by the Federal Office of Public Health (FOPH). Wherever exposure to a heightened risk of the flu virus's proliferation (e.g. where there are gatherings of people, contact with customers, etc.,) is unavoidable, it can be a good idea to wear a mask. The precise situations in which hygiene masks should be used can, however, only be defined once the pandemic virus and its specific transmission characteristics are known. In the case of a pandemic, the FOPH will communicate those situations in which wearing a hygiene makes sense in good time. We recommend that you comply with the official recommendations. - Can my company be put under quarantine if a member of my workforce contracts the flu? The cantonal doctor will assess the situation and take appropriate measures. These may also include health measures by the rescue services such as imposing a quarantine, company shutdown, etc. - In the event of a pandemic, can I oblige my employees to work overtime? Yes, you can oblige them to work overtime (see Art. 321c (1) CO). In the case of a pandemic such as the coronavirus that leads to the absence of many employees due to illness, you are justified in making your employees work overtime. However, take the personal situation of your employees into account, in particular those with family obligations. - Our company has an annual working time model and gives its workforce a lot of freedom in how to organize their individual working time. In the case of a pandemic can I order my employees to compensate any overtime? Compensating overtime with time off requires the consent of both the employer and employee, with both sides in agreement with the principle of compensation, the precise dates in question and duration. You as the employer must be able to prove that your employees consent to it. If their employment contract states that you as the employer have the right to unilaterally instruct your workforce to take compensation, you can demand that your employees take time off. It is not permissible, however, to force your employees to take unpaid leave. If you cannot provide your employees with work or insufficient work, you are obliged to keep on paying their salaries. Your employees must accept a deduction from their salaries of any amounts they save as a result of being prevented from working or that they earn by performing work elsewhere. - Some of my employees belong to a risk group (employees older than 65, pre-existing conditions such as diabetes, high blood pressure, chronic respiratory diseases, cardiovascular diseases, cancer, etc.) How must I protect them? These employees must be given special protection. Therefore, offer them the opportunity to work in the home office, if possible. If not, it must be ensured in any case that the hygiene regulations and social distance are strictly observed. If this is also not possible, there is a wage payment obligation and the employee must stay at home. - Can I terminate my employee who belongs to a risk group right now? This question is not easy to answer. The facts of the particular risk can best be compared with illness (Art. 336 Para. 1 lit. b OR). Either the person can "only" work at home because of the risk (which corresponds to a partial prevention, the usual contractually owed performance cannot be provided) or the employee is on leave, here too the cause of the leave is an illness or increased risk of illness.