Covid certificates: Employers are weighing up the pros and cons

Image: Keystone / Jean-Christophe Bott
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Many employers are wondering how and where they should use Covid vaccination certificates. This is also borne out by data from AXA-ARAG Legal Protection, which says around half of all inquiries in relation to employment law concern this issue.

Since the coronavirus pandemic began, employers have found themselves facing questions regarding compulsory mask-wearing, vaccination, and testing, as well as what measures are permitted in the workplace. The rollout of mandatory vaccination certificates means employers now have an additional factor to consider.

Mandatory certificates in a work or education setting must be justified

Many businesses are wondering how and where to use mandatory Covid certificates. While certificates are compulsory for many establishments, including restaurants, leisure facilities, and fitness centers, the federal government does not insist on them in a work or education setting (including canteens). 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.” “In principle, firms are allowed to include certificates among their precautionary measures if there is justification for doing so,” says Carole Kaufmann Ryan, a lawyer with AXA-ARAG.  For example, compulsory certificates would be justified where a restaurant owner decides 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. Any employer deciding to introduce compulsory certificates in order to keep their business running would also need to pay for the cost of tests should they no longer be free of charge.  In the case of gardening work, on the other hand, compulsory certificates wouldn’t be justified because people are outside most of the time. In all cases, employers have to tread a fine line between protecting all employees and preventing a two-tier society.

Compulsory vaccination in the workplace

Inquiries received by AXA-ARAG show that many businesses are asking whether they can insist on employees getting vaccinated. In principle, this can be done on a contractual basis. Nevertheless, vaccinations can only be made compulsory if this is necessary due to the nature of the work. For example, this would apply in professions where there is daily contact with people at especially high risk. Insisting on vaccinations would not be permitted for jobs where there is no such connection. Any employer considering a contractual arrangement should bear in mind the following: “Since we are talking about interfering with an employee’s personal rights, any vaccination requirement would need to be set out in an individual contract. Adding a general provision to your staff regulations or general terms and conditions isn’t enough,” says Ms. Kaufmann Ryan. If an employer wanted to make retroactive changes to an employment contract, they would need to issue a notice of termination pending a change of contract. “They need to be aware that if they issue a large number of such notices, the rules on mass redundancies might kick in,” she adds.

“Since we are talking about interfering with an employee’s personal rights, any vaccination requirement would need to be set out in an individual contract. Adding a general provision to your staff regulations or general terms and conditions isn’t enough.”

Ms. Kaufmann Ryan, AXA-ARAG

Vaccination incentives

AXA-ARAG is currently being asked whether employers are allowed to offer vaccination incentives. Such incentives would include, for example, monetary subsidies or extra days’ leave for vaccinated individuals, as well as mandatory working from home or workplace restrictions for people who aren’t vaccinated. “In principle, such incentives are possible and permitted in Switzerland. However, it’s important to bear in mind that for various reasons some people cannot or do not wish to be vaccinated and would therefore be at a disadvantage,” says AXA-ARAG’s Carole Kaufmann Ryan. In terms of monetary compensation in particular, the employer should explore the consequences of giving employees such a subsidy under employment and tax law beforehand. 

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