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Coronavirus: Rights and obligations of employees

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Coronavirus is still presenting us with new challenges in our working lives. Covid certificate, working from home, child care: What are employers obligated to do, and what rights do employees have? 

AXA-ARAG's labor law experts have answers to the most important questions concerning coronavirus.

When can an employer introduce a certificate requirement?

The federal government has not yet instituted a certificate requirement for places of work and training institutions (including cafeterias). However, the Federal Council does allow companies to check whether their employees hold a certificate “if this is necessary for deciding on appropriate precautionary measures or for implementing testing concepts.”

Companies may, in certain circumstances and after consulting with employees, integrate the certificate into their protection concept. This means that employers may now request the document (certificate) and attach consequences to it. For example, a restaurant owner may decide that only waiting staff who don’t have a certificate need to wear a mask or if a firm confines working from home to employees who don’t have a certificate.

Can my employer force me to have a vaccination?

No. It is not possible in Switzerland to force anyone to get vaccinated. Under certain circumstances however, however, an employer can ask employees to get vaccinated. But according to the Federal Council, only "if, despite other protective measures taken, the employees themselves or third parties (e.g. patients, clients, work colleagues) are subject to a specific and relatively high risk if they are not vaccinated."  

Can the federal government or canton impose compulsory vaccinations on certain professional groups?

As part of compulsory vaccinations, it may be decided that only those who have been vaccinated can work in certain positions. The Epidemics Act (in force since January 1, 2016) states that cantons can impose compulsory vaccinations only if public health is at serious risk and the population cannot be protected by means of other measures. 

Moreover, who is subject to the compulsory vaccination must be defined. In other words, compulsory vaccination can only be imposed on specifically described groups of people rather than on a general basis. As soon as the serious threat to public health no longer exists, the requirement must be repealed. 

The Federal Council can then order compulsory vaccinations in special situations. The federal government must also define an exact group of people for this purpose. 

One example where possible compulsory vaccinations may be applied would be care staff in nursing homes. 

Can I be given notice if I don't want to be vaccinated?

If you don't comply with an approved directive to be vaccinated, this could result in you being relocated or deployed in an area where there is no contact with vulnerable people. If there are no alternatives, your refusal could ultimately result in termination.

Is unequal treatment of vaccinated and unvaccinated employees in a company allowed?

In companies, the question can arise as to whether vaccinated and unvaccinated employees can be treated differently. For example, it is conceivable that only vaccinated employees are granted access to the company cafeteria. Such unequal treatment is disputed in theory since it can be problematic to further limit unvaccinated persons, but unequal treatment bears the risk of stigmatizing unvaccinated people and of unjustified discrimination. Each case must therefore be reviewed individually regarding whether unequal treatment is objectively justified.

Are employers allowed to provide incentives for getting vaccinated?

In Switzerland, such incentives are generally possible and allowed. In individual cases, however, it is recommended to clarify in advance the provision of such premiums with regard to labor and tax law. Especially with a view to persons who cannot or do not wish to be vaccinated for certain reasons and who would be discriminated as a result.

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I’m worried that I’m infectious. Am I allowed to stay home? 

Yes. In this instance, you must phone your doctor and get examined. You must then submit a medical certificate to your employer. This is the same procedure as for any other illness.

A work colleague is ill with coronavirus and my place of work is under quarantine. What does this mean for me?

You have to still offer to work, e.g. by working from home or at another of the company’s premises. Flexwork may mitigate the situation in this instance. If you can only carry out your work at the quarantined work location,   your employer must continue to pay your salary. This is because in this instance, he or she bears operating risk even in the absence of fault (see Art. 324 Swiss Code of Obligations (SCO)).

My son is ill with Covid. Am I allowed to stay home to look after my son or do I have to go to work? Will I still be paid?

Your employer is obliged to give you up to three days per illness upon presentation of a medical certificate. However if this is necessary for medical reasons, you can also be off work for longer: This is classified as inability to work through no fault of your own (see also Art. 324a SCO) and includes continuation of salary payments for a specific period. However, as parents you must organize childcare to prevent further absences. 

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My child has to stay at home by order of the authorities. Do I have to take vacation in this instance? 

No. This is a case of inability to work through no fault of your own (see statutory duty to look after your children under Art. 276 Swiss Civil Code (SCC)). There is an obligation to continue salary payments for a specific period under Art. 324a SCO. In this instance too however, parents must make every effort to prevent further absences (see above).

What if the company where I work has to be closed by order of the authorities?

Closure of the company is part of operating risk, which means that the employer has to continue to pay salaries. Nevertheless, it can be assumed from the duty of loyalty to the employer that overtime should be compensated.  

Am I entitled to receive my salary if I can’t get back home from my vacation because of coronavirus?

The rule of thumb is that returning home on time is the employee's risk.  If, for example, an airline cancels flights to and from a holiday destination and the employee cannot return to the place of work on time, the obligation to continue salary payments no longer applies. However, if someone becomes infected and cannot travel back home for medical reasons, there is a claim to continued salary payments. 

Is my employer allowed to deploy me at another place of work? At another branch, for instance?

The contractually agreed place of work cannot simply be relocated based on an instruction from the employer. Nonetheless, you must expect to work in another branch or at another location for a specific period in an emergency. However, your employer must take your personal situation and circumstances into account. 

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