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Coronavirus Crisis – What are the employers’ obligations and alternatives?
With the accelerated spread of the Coronavirus (Covid-19) throughout the world, many countries have taken measures to contain the scourge: recognition of a state of emergency, closure of borders, containment measures, closure of schools, shops, public places, and prohibition of gatherings.
In this difficult context, States themselves are taking exceptional measures and implementing financial support for companies. What are the obligations and the alternatives for companies to ensure the protection of the health and safety of their employees while allowing business continuity?
Companies’ obligations and responsibilities towards their employees
Under Swiss law, the employer as a general duty to protect the employee’s life, health and personal integrity (Article 328 of the Swiss Code of Obligations). It is a semi-mandatory provision which cannot be derogated to the disadvantage of the employee. This obligation of health and safety implies :
- an obligation to inform the employee, in particular about the potential risks to which he/she may be exposed in the performance of his/her duties
- an obligation to prevent risk, requiring compliance with certain health and safety regulations.
The employer must therefore take all necessary and useful measures to protect the health of his employees.
In the context of the COVID 19 pandemic, countries have respectively taken different measures. In Switzerland financial support has been granted in the form of economic emergency assistance, while compliance with health and hygiene rules at the work has been required, as teleworking encouraged where the business activity permits. This, especially for employees who are particularly at risk (persons suffering from high blood pressure, diabetes, cardiovascular diseases, immune deficiency, cancer).
In this context, the employer must therefore keep duly informed its employees. Employer shall prevent risk exposure by implementing measures to protect the health and safety of workers, such as maintaining a sufficient distance between employees at work, implementing teleworking where possible,
limiting at strict necessary physical contact and visit of clients, partners, postponing business travel to areas considered at risk, ensuring meetings to be held by videoconference.
In case of international mobility, employees’ information can consist in the delivery of an information brochure on the risks incurred in the host country and the general regulations applicable there in terms of health (risks and sanitary measures) and security (risks related to the geopolitical situation, transports, etc.).
The employee’s health and safety can not be considered without taking out appropriate occupational insurances (health, life and disability, liability, repatriation) for the employee and, if need be, his family. Repatriation insurance usually intervenes only in the event of proven illness requiring repatriation and not as a preventive measure in particular as part of Covid 19 pandemic. Companies shall therefore organise the repatriation of employees in mobility to their country of origin when health and safety cannot be ensured in the countries of assignment and comply with any containment measures that may be required.
In view of the civil or even criminal liability incurred, the employer may impose measures to protect the health and safety of employees, including their repatriation. Employees who fail to comply with these measures are liable to disciplinary action up to and including dismissal. Employees who refuse repatriation must assume the direct and indirect consequences for themselves and their families and relieve the employer of any responsibility.
Companies’ alternatives to be considered
In the current context, several situations can lead to a different organization of work or a total work stoppage. This raises several questions about possible alternatives for companies and possible consequences for employees.
Salary entitlement in case of employees’ absence from work or a significant drop of business activity
When the employee is prevented from working by circumstances for which he is not at fault, such as illness, accident, fulfilment of a legal obligation or public service, the employer shall pay him/her the salary for a limited period of time (Article 324a of the Swiss Code of Obligations).
From this general duty, several situations must be considered in the current exceptional context of Covid 19:
- If the employee is ill (for example contaminated by the virus), he will be entitled to his salary under the usual conditions and related applicable insurances.
- If the employee is quarantined by the Swiss or foreign authorities on arrival or departure from the country of assignment, the employer will also have to maintain the employee’s salary during this period of inactivity.
- When the employee is forced to keep his children at home as a result of, for example, the closure of schools and nurseries, the employer must maintain the employee’s salary for a limited period of time (Article 324a of the Swiss Code of Obligations) and beyond subject to a medical certificate according to the exceptional measures taken.
- In the event of a significant drop of business activity and exemption from work or even a temporary closure of the company at the employer’s own initiative, the company must continue paying the wages to its employees as the employers prevents the performance of work (art. 324 CO).
With the exception of possible short-time working measures which may be applicable under certain conditions as described below, any other reduction in working time or remuneration requires the prior consent of the employee, insofar as it is an essential element of the employment contract. In the context of the implementation of such a modification, the use of modification leave could be considered in accordance with Swiss labor law.
Eligibility to partial unemployment benefits
Under certain conditions relating in particular to the company’s financial situation, partial unemployment benefits may be granted provided that the employees are covered by the competent social security scheme and liable for unemployment insurance contributions. The work loss should be based on economic reasons inevitable and amounts to at least 10% of working hours normally performed by the employee. However, Swiss law expressly excludes the benefit of partial unemployment indemnities for employees working (wholly or partly) outside Switzerland, for a Swiss company, as their professional activity performed abroad is not considered as sufficiently controllable by the Swiss competent institution.
Employees encouragement to take paid holidays
While the employer is in principle entitled to set the dates of holidays, he can nevertheless only impose the taking of holidays after observing a sufficient period of notice, generally equal to 3 months. In the current context of Covid 19, the State Secretariat for Economic Affairs (SECO) considers that this period of notice must be respected. Companies can therefore only encourage employees to take paid holidays within a shorter period with their prior consent. This alternative may make sense from a financial point of view, depending on the financial situation of the company, when the business allows it.
Teleworking from another country and possible consequences in terms of social security scheme
When the employee is no longer able to work from his usual place of work, teleworking should be favored as far as possible. However this could be questionable for cross border workers, in view of the European provisions likely to involve a change in the applicable scheme in case of telework from another country. The French and Swiss competent authorities have taken a position as part of the current exceptional context of Covid 19 and stated that the exercise of a form of telework for cross-border workers and/or expatriates repatriated to their country of origin would not entail any change in the social security scheme for the latter during this temporary period.
These obligations and alternatives for companies will have to be considered in view of the next lockdown exit.
*** The information enclosed within the present newsletter are not exhaustive and do not cover necessarily all legal aspect of the subject. This in no case can replace a legal professional advice particularly regarding the considered case under any particular situation. Copyrights are reserved, except with prior written consent.
For further information please contact
ITX – International Mobility Consulting Department
Chief Legal Officer & Head of International Mobility Consulting Department
Direct line: +41 22 309 35 61