Labour Law Thoughts on Home Office in Times of COVID-19 in Switzerland
As a rule, employees are neither obliged nor entitled to work from home. This article is aimed at Swiss companies that do not yet have any regulations regarding working from home, but now want to make working from home possible in the short term and want to avoid legal stumbling blocks.
In the following, the aspects to be regulated from a legal point of view will be dealt with first and in a second part it will be explained how a temporary and pragmatic regulation can be created with minimal effort.
Legal risks
Contractual regulation
In principle, it would be possible to stipulate the scope and rules regarding home office in the employment contract. In very few cases this is done. At most, the scope - e.g. number of days - is regulated in the contract, but for the details, a general rather than an individual regulation is more appropriate. Unfortunately, general regulations are often dispensed with altogether. No regulation, i.e. merely toleration, is a bad solution, as this harbours great potential for conflict ("I was allowed to do this before" or "why is my colleague allowed to work from home and I am not"). In order to create transparent and general regulations, it makes sense either to supplement the staff regulations or to create separate home office regulations. The regulations should state which employees are generally allowed to work in the home office and which work is to be done in the office. It is clear that not all work is suitable for the home office.
An obligation to work from home, on the other hand, must be agreed with the employee individually and should be stipulated in the employment contract (exceptional situations reserved).
Infrastructure
According to labour law, the employer must provide the necessary work equipment. In the home office, however, private and business use can quickly become mixed. It is therefore necessary to regulate which IT equipment is available for work in the home office and how it may be used. This is also relevant for licensing reasons, as private devices may not have any rights of use or an appropriate licence must be obtained for each device. It is therefore essential to check this. Most relevant, however, are certainly secrecy, security and data protection considerations. It must be ensured that business data remain with the company and do not suddenly end up on private computers.
If there is already a BYOD regulation ("Bring Your Own Device"), this can be used at best.
In her article, Kristin Reinbach gives good advice on possible software tools for the home office.
The infrastructure also includes a corresponding workplace. Permission for home office could therefore be made dependent on the availability of an appropriate workplace (ergonomic chair, table, light, etc.). In case of doubt, the employer can have this confirmed by photos. Furthermore, it should be agreed that the inspectors of the cantonal industrial and labour inspectorate are granted a right of inspection (inspection of compliance with ArG).
On 20min you can find a few simple tips for a pain-free home office.
In addition, here are some general tips on health measures in the home office.
Reimbursement of expenses
If the employee is only entitled to work from home, he is not entitled to reimbursement of expenses (e.g. electricity, printer cartridges, etc.). He could work in the company. However, a provision should be made in any case. If the employee is contractually obliged to work in the home office, the expenses must be regulated.
Time recording
Working in a home office is always a matter of trust. Private and professional activities can quickly become mixed up (e.g. doing the laundry at the same time). However, the obligation to record time also applies in the home office. The employer cannot waive it, as the Labour Act (ArG) remains fully applicable. However, strict working hours will hardly make sense. It will make more sense - as with flexitime - to agree on certain presence times; this ensures availability and simplifies compliance with the Labour Code. Workers should also be made aware that work must be completed within 14 hours and that the ban on night work must not be broken.
The possibility of flexible working hours also creates a better compatibility with care obligations.
Aspects of tax law and social security law
In the case of cross-border commuters, it is essential to consider the tax and social security aspects. If a substantial part of the work is done from home, the employee could suddenly become subject to the law of the place of residence and thus no longer to Swiss law.
Labour disputes
In the case of longer-term and predominantly home office, it is important to note that the usual place of work could suddenly be at the employee's place of residence, which would result in labour disputes being able to be brought at the place of residence (usual place of work).
"Legal and operational aspects are both equally important for a productive home office arrangement."
80/20 approach (temporary home office arrangement)
COVID-19 has already caused enough turmoil in business operations and there is not much time left to draft comprehensive home office regulations. So how can a pragmatic regulation be created?
The first thing to do is to check which labour law rules already exist. In most cases, staff regulations and IT regulations will be in place.
Only the most important things need to be regulated. Instead of detailed home office regulations, the most important points can be written down on 1-2 A4 pages.
The regulation should be limited in time to the COVID-19 situation, including unilateral cancellation by the employer.
The following minimum points must be regulated:
Who may, can or who must now go into the home office?
Arrangement of an alternative solution if there is no workplace at home.
Coordination of office hours (e.g. secretarial staff, telephone service, etc.).
The use of IT resources must be regulated (e.g. obligation to use a business laptop, VPN or which software is to be used).
Time recording and core working hours are to be defined, possibly compulsory participation in certain online meetings/calls.
Due to the school closure, childcare obligations should also be taken into account and thus a certain flexibility in working hours should be granted.
Reimbursement of expenses: It must be stated whether expenses are reimbursed or not. This includes, for example, telephone calls via mobile phone.
Such rules constitute a supplement to or adjustment of the staff regulations and must therefore be communicated to the employees in advance. In order to show that they are binding, a reference to the staff regulations is also useful. The employment contract does not have to be amended for this purpose. In order to ensure that everyone is aware of the new regulations, one could have them signed. If there are any objections, the employee should be consulted.
Due to the employer's duty of care, it is quite justified at the moment to oblige employees to work from home. In my opinion, the employer can invoke health protection (Art. 6 para. 1 ArG) and unilaterally order appropriate measures such as home office based on his right to issue instructions (Art. 321d OR).
Ultimately, this extraordinary situation demands flexibility and a willingness to compromise from both sides.
This article was written by RA Yves Gogniat.
Please feel free to contact Arife Asipi with any concerns.