Read the impact of the latest developments in our legal tip Corona: The latest federal decisions and their effects
Duties and rights as an employee during the pandemic
As at February 12, 2021
The pandemic has changed our daily lives at work. Many key questions arise regarding legal issues. What are employers obligated to do, and what rights do employees have? What if I become unemployed during the lockdown? Can my employer force me to get vaccinated?
In this article, we want to explain the most important topics:
- The employer’s duty of care
- Working from home and business travel
- Coronavirus and salary
- Unemployment during the pandemic
- The various duties of employees
Does my employer also have a duty of care during the pandemic?
The duty of care also continues to apply during the pandemic. Employers are obligated to protect their employees with suitable and reasonable measures in order to prevent contagion or the further spread of the virus. Specific measures are providing hand disinfectant or hygiene masks at the workplace, for example. In Switzerland since October 29, 2020, it has been required to wear a mask at the workplace and indoors.
Furthermore, employees who show symptoms of COVID-19 can be required to stay home. The same applies to employees who return to Switzerland from a country or region with an increased risk of infection. The employer can require the person to work from home for up to two weeks and to observe whether any symptoms of illness occur – if the government has not already ordered this. In addition, a home office obligation has been in place since January 18, 2021 – where this can be implemented with reasonable effort.
Is my employer liable if I become infected at work?
Possibly. Due to their duty of care, your employer is obligated to take all measures that are necessary based on experience, are applicable according to the latest state of technology, and are appropriate for the company’s circumstances to prevent infection at work, for example. A check must be carried out on a case-by-case basis to ascertain whether this duty of care is being adequately fulfilled and may provide grounds for liability.
I have symptoms of COVID-19 and would like to stay away from work. I don’t want to infect anyone. Is that OK?
Yes, it is important to prevent the further spread of the coronavirus. Call your doctor if you have symptoms and follow their instructions. Notify your employer and submit a medical certificate if necessary and/or possible. The procedure is generally the same as for other illnesses.
Because orders are outstanding or there is a lack of raw materials, it is no longer possible for all staff to be employed at the place of business. Can my employer ask me to work somewhere else, such as at another branch?
Generally speaking, the contractually agreed place of work cannot simply be relocated based on an instruction from the employer. Nonetheless, if there is an urgent operational need, you must accept having to temporarily work at another place of work. However, consideration must be given here to the personal situation of the affected employees.
Risk group due to pregnancy
Employers must take special social and occupational protection measures to prevent pregnant women from becoming infected with the coronavirus. Working from home is recommended, wherever possible. In addition to the already applicable protection measures that must be adhered to for pregnant women according to the ordinance on maternity protection, pregnant women have an increased need for protection: In individual cases, they can stay home based on the risk of infection without losing their claim to salary.
However, you should not do this without obtaining legal advice beforehand. In the case of risk groups, the employer must order home office and/or implement measures to ensure that the coronavirus recommendations of the FOPH regarding hygiene and social distancing can be adhered to. What exactly such organizational and technical measures should look like depends on each individual workplace.
The employer must ensure that all reasonable safety precautions are taken to prevent contagion. If working from home is not possible and the hygiene and distancing rules at the workplace cannot be upheld, then you as a pregnant woman may stay home and not lose your claim to salary.
Can I, as an employee, refuse to go on a business trip?
If the FDFA has not issued any travel restrictions for the region in which the business appointment is taking place, there is no sufficient reason to refuse to travel there.
Can the company insist that I work from home?
If there is a corresponding clause in your employment contract, the company can require you to work from home. Such a measure may also be justified in order to protect employees from the coronavirus if there is a high chance of infection.
Let's assume that the federal government repeals the home office obligation. I would like to stay at home, however, because I'm worried about catching the virus. Can I do that?
If it is operationally possible to work from a home office, you can ask your employer accordingly and discuss the options. However, if the authorities have not issued any instructions to this effect, employees are not entitled to stay at home. If you stay away from work and refuse to return despite being asked to do so by your employer, you run the risk of disciplinary measures such as a warning or even summary dismissal. An exception could be made if you have concrete reasons to fear becoming infected at your place of work, for example because the hygiene regulations of the Federal Office of Public Health (FOPH) are not complied with. If such a situation occurs, you must notify your employer of your reasons for staying away from the workplace and require the necessary protection measures be taken. As proof, we recommend documenting this in writing.
An employee at our company is ill with the virus and our place of work has been placed under quarantine. What does that mean for me as an employee?
You are still obligated to offer to work by working from home, for instance, or at another site. Flexible types of work may mitigate the situation here. If you cannot do your work outside of your quarantined place of work, your employer must continue to pay you, as it bears business risk even in the absence of fault (see Art. 324 Swiss Code of Obligations (SCO)).
I am ill with COVID-19 and can no longer do my work. Will I still be paid?
Yes, there is normally an entitlement to continued salary payments.
What happens if I have been placed in quarantine and thus can’t go to work?
If you are ordered to stay in quarantine by a doctor or the authorities, you are entitled to daily benefits under loss of earnings insurance (EO). Daily benefits amount to 80% of salary, subject to a maximum of CHF 196 per working day (excluding vacation). The request for these benefits with the OASI can be made through your employer or by yourself directly as the employee.
My employer has sent me home as a precaution. Will this be deducted from my pay?
No, your employer is obligated to pay you.
Am I entitled to be paid if I am unable to travel back from my vacation because of the coronavirus?
In this case, your employer is not obligated to pay you for the additional absence.
Do I have an entitlement to salary if I have to go into quarantine after returning from travel abroad to a risk area (according to the FOPH)?
No, according to our assessment your employer is not obligated in this case to pay wages since you are at fault for the absence. An exception could apply solely for those who are returning from travel they had to take for personal reasons, for example to visit a dying relative. (Note: There is no legal precedent covering this matter.) As a rule, if an employee can work from home, there is no incapacity for work. From the viewpoint of the federal government, the incapacity to work due to quarantine is through fault of your own, which is why there is no entitlement to compensation for loss of earnings.
Can my employer order quarantine after I return from vacation in a non-risk area (according to the FOPH) and what happens to salary payments?
If a country is not on the list of risk areas, but has high infection rates, the employer can order a period of quarantine but must continue to pay salary. And they cannot force the employee to take vacation as a result.
Can I be fired if I have to go into quarantine after going to a nightclub?
In general, the decisive point is whether you as an employee are at fault for the quarantine. If you are at fault for the reason for staying away from work, then a termination is legal. You are “at fault” if you act negligently. In turn, you are negligent if you do not comply with precautionary measures that a rational person would have observed. In other words, if you recklessly went to a club where the protection measures were not or could not be enforced, then you acted negligently and are at fault for the quarantine. For this reason, it could be legal for the employer to terminate your employment. As always, however, each case must be assessed individually. In Swiss labor legislation, the principle of freedom of termination applies.
As an unemployed person, can I be allocated a job during the pandemic?
Yes, that is possible. However, the work must be reasonable. Here too, employee protection applies. In other words, employers are obligated to take suitable and appropriate measures to protect their employees and to prevent any contagion or spreading of the virus.
Do I have to make an effort to look for work during the pandemic?
Yes. You must continue to look for a job even during the pandemic.
Do I still have to register in person with the local municipality or with the Regional Employment Office (REO) if I become unemployed?
Registration with the REO is ensured even in the case of a pandemic. Depending on the situation, you can register in person, electronically, or by mail. For further information on the opening hours, please refer to the responsible REO.
I quit my job out of fear of becoming infected. Can I claim unemployment benefits? Should I expect a penalty?
Yes, you can claim unemployment benefits if you are willing and able to take on a new job and fulfill the other requirements for receiving unemployment benefits (contribution period, etc.). You must expect a penalty if the risk is deemed not to exist (for example, if your employer met their duty of care and adequately protected their employees).
Vacation during the coronavirus pandemic
I wanted to take vacation over Easter and travel to Italy. Due to the current situation, I cannot travel as planned. For this reason, I don’t want to take my already scheduled vacation time. Does my employer have to cancel the vacation time?
No. In general, the purpose of vacation, e.g. relaxation, can also be fulfilled at home. There is no entitlement to travel during vacation. That’s why vacation that has already been approved can only be canceled with the consent of the employer.
Can my employer forbid me from traveling to a high-risk country during my vacation?
No, employers cannot prohibit private travel. At most, they can inform their employees of the risks and call on them to deal with these responsibly. However, vacation in a high-risk area can impact salary payment (see above).
Since we only had a limited number of staff at the company over several weeks because of the coronavirus crisis, a lot of pending items have accumulated. Can my employer now ban vacation at short notice to manage the backlog of work?
Your employer determines the time at which vacation can be taken. At the same time, they are obligated to account for the requests of the employees. If your employer wants to order vacation, you have a right to receive information and in good time (that generally means three months in advance). Your employer has the option of postponing already approved vacation – this is justified if there are serious reasons for doing so. However, they are definitely required to bear any costs that have already been incurred.
What consequences should I expect if I refuse to wear a mask?
According to the Swiss Epidemics Act, employees who do not comply with the obligation to wear a mask can be penalized with a fine of up to CHF 10,000. In the case of negligence, a fine of up to CHF 5,000 is possible. According to labor law, refusal can result in a warning or termination of employment. In the worst-case scenario, after warning has been given summary dismissal is possible.
Can I be forced to be vaccinated?
No. It is not possible in Switzerland to force anyone to get vaccinated.
What's the difference between a compulsory vaccination and a vaccination obligation?
A compulsory vaccination would mean that you are forced to get the vaccination. In other words, if necessary a vaccination is effectively given against your will. As already mentioned, there is no such thing as a compulsory vaccination in Switzerland and there is also no legal basis for such. An extremely high hurdle would have to be taken to create such a legal basis and it is questionable whether it would even be constitutional. At present, it is even specifically stated in the Epidemics Act that a vaccination cannot be given by physical force.
A vaccination obligation means: No one can force anyone to get vaccinated. But: People in certain positions can only work if they have been vaccinated. The new Epidemics Act (in force since January 1, 2016) states that cantons can issue a vaccination obligation only if public health is at serious risk and the population cannot be protected by means of other measures.
Moreover, who exactly is subject to the vaccination obligation must be precisely defined. That means that a general vaccination obligation cannot be ordered, but rather only for precisely described groups of people. As soon as the serious threat to public health no longer exists, the obligation must be repealed.
The Federal Council can then order a vaccination obligation in special situations. The federal government must also define an exact group of people for this purpose.
One example where a possible vaccination obligation may be applied would be care staff in nursing homes.
What happens if I belong to a group of people that is subject to a vaccination obligation but I don’t want to be vaccinated?
There are no penalties outlined in the Epidemics Act, meaning no penalties or fines can be issued. If, however, there is a valid vaccination obligation in place for certain nursing homes, for example, you may have to work at another location or risk termination of employment.
Can my employer force me to install the coronavirus app?
No, use of the app is voluntary.
Do I still get paid if I voluntarily go into quarantine after receiving notification from the app?
No. An alarm from the app alone is no obligation to go into quarantine. If, after receiving a contact notification from the SwissCovid app, you voluntarily go into quarantine without this being ordered by an authority or doctor, you will not receive compensation. If you have to go into quarantine on the order of a doctor or authority, you are entitled to earnings compensation due to the coronavirus.
If I receive a warning, do I have to inform my employer?
In general, you are not obligated to inform your employer or anyone else regarding (possible) contact with infected people. If you voluntarily go into quarantine, then you must notify your employer.
May I still go to work if I have received a warning about a possible infection?
If you have symptoms then you should see a doctor or do the coronavirus check here and follow the recommendations of the check. According to the recommendations of the Federal Office of Public Health, you can go to work if you do not have any symptoms. Continue to strictly follow the applicable hygiene and conduct rules and monitor your health.
Childcare during the coronavirus pandemic
My child has become ill with the coronavirus and has been written off sick by the doctor for two weeks. I have to stay home to take care of my child. Will I still be paid?
If you have a medical certificate, the employer is obligated to grant a parent the time required to look after sick children of up to three days per illness. However, under certain circumstances, you can also be released from work for longer if this is justified for medical reasons. This is also deemed to be inability to work through no fault of your own (see also Art. 324a SCO) with obligation to continue salary payments for a limited period. Nonetheless, parents must make every effort to prevent further absences by making suitable arrangements, such as alternating childcare.
Do I have to take vacation if my child has to stay home by order of the authorities, such as closure of schools and nurseries in the canton?
No. This is a case of you being unable to work through no fault of your own (see statutory duty to look after your children under Art. 276 Swiss Civil Code (SCC)) with an obligation to continued salary payments for a limited period under Art. 324a SCO. Nonetheless, parents must make every effort to prevent further absences by making suitable arrangements, such as alternating childcare.
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