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Marcel C. Steinegger
Andrea Trost
Due to the declining number of new infections, the Federal Council has largely relaxed its measures. On 22 June 2020, the Federal Council repealed the COVID-19 Ordinance 2 which contained, among other things, obligations of employers with regards to the coronavirus.
In the meantime, most businesses have resumed their operations and employees have largely returned to their workplaces. However, the increasing number of new infections in the last couple of days shows that normality has not returned. How should employers deal with this situation?
What protective measures are required?
According to art. 6 of the Labour Act, employers have a duty to avoid all harm to the health of their employees as far as reasonable. The employers have to take all measures which are necessary from experience, applicable according to the state of the art and appropriate to the circumstances of the business. This principle includes the additional requirements imposed by the Federal Council and the Federal Office of Public Health (BAG) for the protection of employees and other persons in the company from the coronavirus. The State Secretariat for Economic Affairs (SECO) has published in this regard a leaflet for employers on health protection at the workplace. It contains useful information regarding social distancing and hygiene at the workplace. If the minimum distance of 1.5 metres cannot be maintained, measures must be taken in accordance with the so called STOP principle (substitution, technical measures, organisational measures, personal protective equipment). These include, for example, partition walls or separate teams. No longer necessary are formal sets of precautionary measures for businesses or parts of businesses which are not generally accessible to the public. On 22 June 2020, the Federal Council also repealed the recommendation to work from home. It is therefore in principle the decision of employers as to whether their employees should work from home or in the office. However, the leaflet of the SECO adheres to the recommendation to work from home if the recommended distance at the workplace cannot be maintained. In any case, the SECO leaflet helps employers to take the right protective measures.
How should employees who are at especially high risk be dealt with?
Employees who are at especially high risk are persons over the age of 65 and people with certain underlying medical conditions, such as high blood pressure, chronic respiratory diseases, diabetes, conditions and therapies that weaken the immune system, cardiovascular disease and cancer. The specific requirements for protecting such people who are at especially high risk have been lifted when the COVID-19 Ordinance 2 was repealed. As the requirements no longer apply today, the protective measures required for people who are at especially high risk are the same as the ones required for other people (see above). It remains to be seen as to whether special rules will again be put in place for these groups of people.
Can employers prohibit travelling to high risk countries?
Holidays are part of an employee’s private affairs. However, employers can inform the employees about the risks and issue recommendations to not travel to high risk countries. If employees have travelled to a high risk area without a compelling reason and have to go into quarantine upon their return to Switzerland, they are not entitled to receive salary payments during this time, unless they can work from home. The reason behind it is that it is the employee’s own fault if he or she has deliberately and without a compelling reason entered a high risk area.
If an employee has travelled to a country which is not on the list of high risk areas of the Federal Council and for which there is no obligation to quarantine, the employer may still request the employee to quarantine based on his right to issue instructions. However, the employer must continue to pay the employee’s salary during this time.
The rules on short-term work change again
Employers continue to have the option of applying for short-term work compensation in order to preserve jobs. The Federal Council has extended the maximum period for receiving short-term work compensation from twelve to eighteen months with effect from 1 September 2020. During the course of the coronavirus crisis, the procedure for applying for short-term work was greatly simplified and the group of employees eligible to claim it was repeatedly expanded. Eligible for compensation are now also employees with a fixed-term contract, on call workers, provided they worked within the same company for at least six months and employees who are in a temporary employment relationship. Since the end of May 2020, persons who are employed in a similar function to that of an employer or spouses or registered partners working at the company of the employer and persons completing an apprenticeship are no longer entitled to short-term work compensation. Since the end of May 2020, the requirement to submit an advance notification to the responsible cantonal employment office is applicable again and from 1 September 2020 onwards, the ordinary procedure for applying for short-term work will largely come into force again. In particular, the reduction of overtime will be reintroduced, i.e. overtime worked during the six months prior to the short-term work will have to be reduced again in order to be eligible to receive short-term work compensation. A short waiting period of one day will apply from 1 September 2020.
Other cost-cutting measures are salary reductions, a reduction in working hours or the working week or the taking of unpaid leave. These measures cannot be ordered unilaterally by the employer either. They require the consent of the concerned employees.
What must be taken into account with regards to redundancies?
In Swiss labour law, the principle of freedom to dismiss is generally applicable. Accordingly, employers may, subject to the prohibition of wrongful termination (art. 336 CO) and protected periods (art. 336c CO), terminate the employment relationship taking into account the contractual or statutory notice period.
Special rules apply to mass redundancies. Mass redundancies are notices of termination given by the employer to employees of a business within 30 days of each other for reasons not pertaining personally to the employees (terminations for economic or organisational reasons) and which affect:
- at least 10 employees in a business normally employing more than 20 and fewer than 100 employees;
- at least 10% of the employees of a business normally employing at least 100 and fewer than 300 employees;
- at least 30 employees in a business normally employing at least 300 employees.
An employer intending to make mass redundancies must inform and consult the organisation that represents the employees or, where there is none, the employees themselves. The cantonal employment office must also be informed. An employer who normally employs at least 250 employees and intends to make at least 30 employees redundant, must further hold negotiations with the aim of preparing a social plan.
Regular information creates trust and security
The situation is changing daily, which leads to uncertainty. Developments should therefore be monitored closely. The employer should continuously check whether new guidelines have been issued or whether further measures are necessary.
We advise to inform the employees regularly about the situation within the company as well as about changed or planned measures or relaxation of measures. This includes information on the risks involved in travelling to a high risk area, repeated reminders of the hygiene and social distancing regulations and correct behaviour in the event of infection.
Regular information creates trust and proves that the employer is fulfilling his duty of care.
