Labour law & coronavirus

Labour law questions from employers and employees

The situation surrounding the outbreak of the coronavirus continues to affect Switzerland and the rest of the world. Employees have questions in relation to their salary in the event of sickness or care leave, or temporary closure of the workplace due to a decision by the authorities. In addition to political and social ramifications, the focus is increasingly on the legal implications. We will be happy to answer any questions you may have.

Information as of 18 March 2020.

Questions concerning “labour law & coronavirus”

The employer is obliged, upon presentation of a medical certificate, to give three days of leave to care for a sick child (Art. 36 para. 3 EmpA). If the child is seriously ill, or if it is not possible to arrange for other care within three days, this time period may be extended. In the coronavirus situation, making arrangements for childcare is often difficult. 

Whether or not salary is still owed is determined in accordance with Art. 324a of the Swiss Code of Obligations (SCO). Child sickness constitutes a work impediment for which no fault is attributable pursuant to Art. 324a SCO, which is why salary is still owed for a certain period of time. The duration of the obligation to continue to pay salary depends on the number of years of service. 

NB: If there is an obligation to continue paying salary on the basis of work incapacity, we look at whether the statutory provisions were departed from and whether, for example, there is a daily sickness benefits insurance (longer continuation of payment of salary).

In general, the principle “no work, no salary” applies in labour law. There are two exceptions. First, if the employer is responsible for the employee’s inability to work (Article 324 SCO) and, second, if the employee is prevented from working due to personal circumstances (illness, accident) through no fault of his own (Article 324a SCO). In the latter case, the employment relationship must have lasted or have been entered into for more than three months.

In the current situation, parents are required to make arrangements (e.g. for third-party care) to avoid further absences. Due to current circumstances, however, many would not be able to arrange for childcare, because grandparents in particular cannot be used as third-party childcare. If the parents themselves provide the childcare, is there an obligation to continue paying their salary? The legal situation is uncertain.

The issue of whether or not the employer has an obligation to continue paying salary under the Swiss Code of Obligations (SCO) is disputed. According to SECO, such an obligation exists under Art. 324a SCO. A number of academic opinions as well as the Zurich Labour Court in a similar case argue, however, that in a situation similar to an epidemic the employer has no obligation to continue paying the salary.

The Federal Council saw this problem, which is why it issued the Ordinance on Measures in the event of Loss of Earnings in Connection with the Coronavirus (COVID-19).

Under Art. 2 of the aforementioned Ordinance, parents of children under 12 years of age who have to stop working because their child’s third-party care is no longer available are entitled to compensation if, at the relevant time:

  • they are employed or self-employed;
  • they pay compulsory OASI insurance contributions (i.e. are resident in Switzerland or are gainfully employed in Switzerland).

The need for care must be attributable to an official measure to combat the coronavirus, e.g. the closure of schools, nurseries, childcare settings, or to the fact that the carer is an extremely vulnerable person (persons aged over 65 years or with prior illnesses). Both parents may be eligible, but only one daily allowance is paid per day of gainful activity.

The daily allowance paid by the compensation office is secondary to other social insurance benefits and to continued payment of the salary by the employer.

Commencement and termination of the entitlement

The entitlement arises on the 4th day after the conditions set forth in Art. 2 are met. As schools have been officially closed since 16 March 2020, the entitlement can arise on 19 March 2020 at the earliest. The entitlement ends as soon as a care solution is found or the measures to combat the coronavirus are lifted. There is no entitlement during school holidays.

For self-employed persons, a maximum of 30 daily allowances are paid.

Amount of compensation

The daily allowance amounts to 80% of the average income earned prior to the start of entitlement to the allowance. However, it does not exceed CHF 196.00 per day.

Despite the possibility of third-party care (Kita etc.), I want to look after the children myself because I’m afraid of an infection. Am I still entitled to the continued payment of my salary?

If the child in need of care is healthy, the employee must make arrangements so that he can fulfil his work obligations. Thus if third-party care is available, the employee cannot simply look after the children himself because of a fear of infection. If he does, the obligation to continue salary payments ceases. 

Can I stop going to work because I fear infection and am I still entitled to receive my salary?

As a rule, the employee has a duty to carry out his work. If an employee stops working without good cause, he is not entitled to continued payment of salary and risks termination with immediate effect.
The employer is required to comply with federal and cantonal measures and regulations, however. Failure to comply with these gives the employee the right to refuse to work. It is recommended that the employee forewarn the employer and make a written record of the measures that are not being complied as evidence. 

NB: Employers must allow extremely vulnerable employees to work from home. If work can only be performed at the normal place of work due to the nature of the work or in the absence of feasible measures, employers are obliged to take appropriate organisational and technical measures to ensure compliance with the federal recommendations on hygiene and social distance. If this is not possible, extremely vulnerable employees must be put on leave with continued payment of salary (cf. SCOVID-19; Ordinance 2 on Measures to Combat the Coronavirus). Employees are to identify themselves as extremely vulnerable in a personal statement. The employer can request a medical certificate.

If the child in need of care is healthy, the employee must make arrangements so that he can fulfil his work obligations. Thus if third-party care is available, the employee cannot simply look after the children himself because of a fear of infection. If he does, the obligation to continue salary payments ceases. 

As a rule, the employee has a duty to carry out his work. If an employee stops working without good cause, he is not entitled to continued payment of salary and risks termination with immediate effect.
The employer is required to comply with federal and cantonal measures and regulations, however. Failure to comply with these gives the employee the right to refuse to work. It is recommended that the employee forewarn the employer and make a written record of the measures that are not being complied as evidence. 

NB: Employers must allow extremely vulnerable employees to work from home. If work can only be performed at the normal place of work due to the nature of the work or in the absence of feasible measures, employers are obliged to take appropriate organisational and technical measures to ensure compliance with the federal recommendations on hygiene and social distance. If this is not possible, extremely vulnerable employees must be put on leave with continued payment of salary (cf. SCOVID-19; Ordinance 2 on Measures to Combat the Coronavirus). Employees are to identify themselves as extremely vulnerable in a personal statement. The employer can request a medical certificate.

In the current situation, based on a duty of loyalty and the employer’s right to issue instructions, the employee must work from home insofar as this is reasonable under the circumstances. The employer must provide the necessary infrastructure and bear any additional costs that arise. If the employee agrees with the employer to equip herself with supplies or the necessary infrastructure, the employer is to pay appropriate compensation. The same applies to necessary work expenses (e.g. telephone bill, etc.). The employer is in principle free to enter into a different agreement with the employee.

NB: For cross-border commuters, working from home also causes problems under social insurance law. When a person works in gainful employment in more than one country, the obligation to pay social security exists in the country of residence if the activity there is significant. It is deemed significant if it accounts for at least 25% of the total working time (see EU Regulation 883/2004, Art. 13).

As a general principle, the employer is entitled to demand that holiday be taken. However, the employer must also take the employee’s needs into consideration as far as this is practicable for the company. To enable the employee to plan his holidays, the holidays must be allocated at an early stage. As a rule of thumb, notice must be given three months in advance. Some people believe that in the current exceptional situation it is possible to depart from this rule. In addition, it is always possible to take holiday on short notice by mutual agreement. 

When an employer sends an employee home, he waives the employee’s obligation to work and so he must continue to pay the salary (cf. Art. 324 SCO).

If agreed between the employer and the employee, short-time working may be applied for.

If the employer has ordered the self-isolation without implementing official measures, he continues to be obliged to pay the salary.

If the quarantine is the result of official measures relating to the coronavirus, the legal situation is still unclear on whether there is a duty to continue paying the salary. However, the “Ordinance on Measures in the event of Loss of Earnings in Connection with the Coronavirus (COVID-19)" also applies in this case. According to Art. 2 of this ordinance, persons who are placed in quarantine on the basis of official measures are entitled to compensation if, at the time of the interruption of their gainful employment:

  • they are employed or self-employed;
  • they pay compulsory OASI insurance contributions (i.e. are resident in Switzerland or are gainfully employed in Switzerland).

Persons who are able to work from home during quarantine are not entitled to compensation (work-from-home).

Commencement and termination of the entitlement

The entitlement arises as soon as the prerequisites of Art. 2 of the COVID-19 Ordinance on the Loss of Earnings are met. However, at the earliest on the date of entry into force of the Ordinance on 17 March 2020. The entitlement ends as soon as the period of self-isolation is terminated or at the latest after 10 daily allowances have been paid.

Amount of compensation

The daily allowance amounts to 80% of the average income earned prior to the start of entitlement to the allowance. However, it does not exceed CHF 196.00 per day.

Under Article 321c para. 1 SCO, the employee is required to perform overtime, if necessary, for the employer. Due to the exceptional current situation, requesting overtime work is likely to be justified in most cases. The employee must be reasonably able to perform overtime work. The employee's health and family responsibilities must namely be taken into account.

Compensation of overtime with time-off requires the consent of the employer and the employee. The employer therefore cannot impose overtime compensation against the employee's will. The employer must have proof of the employee’s consent.

If under the employment contract the employee has conferred on the employer the right to unilaterally decide the compensation, then this is allowed. The employer must notify the employee of his unilateral compensation decision one week (seven days) in advance.

If the employee has already agreed holidays with the employer, he must in principle take them. The risk that the employee is unable to travel is borne by the employee. However, a holiday must meet the purpose of rest and relaxation. This purpose is also served if the holiday is spent in Switzerland or at home. The situation is different if the employee is ill with coronavirus during the holiday time. This inhibits the rest and relaxation purpose, and the holiday must be postponed.

It is always possible to postpone holiday if both parties agree.