Coronavirus and COVID-19 from the employer's perspective
The number of cases of COVID-19 is increasing rapidly in Switzerland. Currently, over 3000 people have already tested positive (as of 18 March 2020). More than 20 people have already died from it. People are afraid and fear infection. In this context, many questions arise in terms of labour law. How can workers be protected as much as possible without productivity suffering too much? What about the obligation to continue to pay wages? Can home office be ordered? These questions will be explored here.
Employer's duty of care and right to issue instructions
Based on Art. 328 CO and Art. 6 ArG, the employer must protect the personality of the employee and give due consideration to his health. In order to protect the life and health of his employees, he must take the measures that are necessary according to experience and applicable according to the state of the art and that correspond to the conditions of the enterprise. This currently includes that the employees are made aware of the applicable hygiene regulations of the FOPH and that the measures indicated therein are observed in the enterprise. Based on his right to issue instructions according to Art. 321d CO, the employer also has the possibility to order even more far-reaching measures. For example, he can oblige employees to work from home, require that certain minimum distances be observed in the canteen or at the workplace, or prohibit shaking hands on the business premises.
When is an employee entitled to wages despite COVID-19?
Art. 324a CO provides that the employee is entitled to payment of wages if he is prevented from performing his work for reasons that lie in his person, such as illness or the fulfilment of a statutory duty through no fault of his own. In this case, the employee's entitlement to wages continues for a limited period of time, provided that he notifies the employer as soon as possible of his inability to work and then sends him a doctor's certificate within a reasonable period of time. The following examples explain when an employee is entitled to wages in application of the above article.
Worker is afraid of catching the disease
If the employer takes all reasonable measures to protect his employees, the employee who does not start work for fear of catching the disease is not entitled to a salary. He even risks dismissal under Art. 337d CO for refusing to work.
Self-quarantine and care of sick relatives
If an employee follows the BAG's instructions and goes into self-quarantine in the event of a suspicion, the reason for the employee's inability to work lies with the employee. He is entitled to continued payment of wages. The regulation in force in many companies that a doctor's certificate has to be provided from the third day of absence from work should be reconsidered in the current situation with increasing cases of COVID-19 infection. In order not to overburden the medical infrastructure, it makes sense to require medical certificates only from a later date. The possible adaptation of corresponding operational directives makes perfect sense. Also based on Art. 324a of the Swiss Code of Obligations, an employee is entitled to a salary if he/she is not ill him/herself, but if, for example, he/she has to care for sick relatives. However, in this case the employee is obliged to organise a substitute solution for the care of the sick relative as soon as possible (in practice a period of 3 days applies).
"Employers and employees have many rights and obligations, especially in this exceptional situation."
Quarantine ordered by the authorities
The same applies if an employee is placed in quarantine by order of the authorities without having fallen ill himself or without the virus being detected in him. In this case, too, the employee is entitled to a salary for a limited period of time on the basis of Art. 324a CO. Of course, the employer's obligation to continue paying wages according to Art. 324a CO exists even more if an employee is actually ill with the coronavirus and therefore has to be hospitalised or has to cure the illness at home. However, the right to a salary may be denied if the employee has voluntarily put himself in danger, for example, by going to a country with a travel warning despite being aware of the dangers of infection.
Particularly vulnerable person
Art. 10c of Federal Council Ordinance 2 on Measures to Combat the Coronavirus expressly provides that persons at particular risk should carry out their contractual duties from home. If this is not possible, they are to be given leave of absence by the employer with full salary payment obligations. Particularly vulnerable persons are people aged 65 and over and persons with the following diseases: High blood pressure, diabetes, cardiovascular diseases, chronic respiratory diseases, immune deficiency and cancer.
Quarantine of individual farms or entire areas
If an individual business is quarantined, in application of Art. 324 CO, the employer is in default of accepting work performance. In this case, the affected workers are still entitled to payment of wages. If an entire area is placed under quarantine by official decision and/or in application of the Epidemics Act, the reason for the inability to work no longer lies in the person of the employee, but the rules according to force majeure apply. In this case, the employee is not entitled to a wage or the company does not have to pay the wage.
What happens when the school is closed?
Should there be prolonged school closures and an employee would have to supervise his or her school-age children because of this, the same rules apply as for the quarantine of an entire area. Here, too, the rules of force majeure would apply, which means that the reason for the work prevention would no longer lie in the person of the employee. He would lose his wage entitlement as a result. In the short term, however, the same rules should apply on the basis of Art. 324a CO as in the case of caring for a sick child. The employee may be absent from work for a short time, but he is obliged to organise care within a reasonable period of time (according to practice within 3 days as in the case of illness).
This article was written by lawyer Anita Hug and lawyer Yves Gogniat.
For further information, please contact Arife Asipi.