Employment law & coronavirus

Employment law questions from employers and employees

Lawyer for Employment Law during the Corona pandemic

The situation surrounding the outbreak of the coronavirus is currently occupying Switzerland and the rest of the world in equal measure. In particular, employees are facing questions of employment law regarding continued payment of wages in the event of illness or care, home office or if the workplace is temporarily closed due to official orders. In addition to the political and social consequences, legal issues are also increasingly in focus. Our lawyers for employment law will be happy to support you in answering your questions.

Information as of 14th December 2020.

Questions concerning “employment 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, it is difficult 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 due to measures taken to combat the coronavirus, such as the closure of schools, crèches, kindergardens or the fact that care is no longer possible because it has been taken over by a person who is in quarantine on medical or official orders. If your child is in quarantine, you are entitled to the compensation if you have to interrupt your gainful employment for the care. However, if care can still be provided, for example by your spouse or partner or by another person, compensation is not necessary.

If you decide to stop sending your children to external childcare (e.g. daycare centre) even though this service is still available, you are not entitled to compensation.

Since special measures no longer apply to persons at risk, you are not entitled to the compensation if the person who usually looks after your child belongs to a risk group (grandparents, for example).

The daily allowance from the compensation office is subsidiary to other social insurance benefits and to the employer's continued salary payments.

Commencement and termination of the entitlement

The entitlement arises on the 4th day after the ordered closure of the facility or the ordered quarantine of the third person intended for care.

If quarantine is ordered for you or the child, the entitlement arises at the beginning of the ordered quarantine of the employed person or the child. A maximum of ten daily allowances will be paid per case of quarantine. The entitlement ends as soon as a care solution is found or the measures to combat the coronavirus are lifted.

In principle, there is no entitlement during the school holidays. However, if the childcare solution planned for the school holidays is not available due to the coronavirus (e.g. if the holiday camp or leisure activity has been cancelled), you are entitled to the compensation. The time of the school holidays is based on the official school holidays of your canton of residence.

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.

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. 

Recommendations for people with pre-existing conditions and thus at particular risk for Covid-19: Inform your employer about your health situation. Together you are asked to look for and agree on feasible solutions for your personal situation as well as within the framework of the company's possibilities. In any case, the employer must ensure sufficient health protection by observing the hygiene and behavioural rules of the FOPH.

On 18 October 2020, the Federal Council issued a home office recommendation wherever operationally possible.

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 leads to questions 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. However, it must be ensured that the recreational purpose of the holidays is given despite the pandemic. 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).

 

The quarantine measure must be supported by a medical certificate or by the official order. If the cantonal doctor is unable to issue such a document in view of the increasing number of cases, you can indicate this by means of a self-declaration.

 

If you are ill or have been granted leave by your employer because you belong to the risk group, you will not receive the compensation, as the employer is obliged to continue paying your salary in these cases.

 

Note: In the event of quarantine within the meaning of Art. 2 Covid 19 Ordinance Measures in the Area of International Passenger Traffic of 2 July 2020 (entry from area with increased risk of infection), there is no entitlement to compensation.

The quarantine measure must be supported by a medical certificate or by the official order. If the cantonal doctor is unable to issue such a document in view of the increasing number of cases, you can indicate this by means of a self-declaration.

If you are ill or have been granted leave by your employer because you belong to the risk group, you will not receive the compensation, as the employer is obliged to continue paying your salary in these cases.

Note: In the event of quarantine within the meaning of Art. 2 Covid 19 Ordinance Measures in the Area of International Passenger Traffic of 2 July 2020 (entry from area with increased risk of infection), there is no entitlement to compensation.

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.