Obligation to continue to pay wages when entering a country from a risk area?
The Confederation bases the order for compulsory quarantine on Art. 35 of the Epidemics Act (EpG). The details are regulated in the Covid 19 Ordinance Measures in the Area of International Movement of Persons. Anyone entering Switzerland from certain areas with an increased risk of infection (risk area) must undergo a ten-day quarantine. Certain persons entering Switzerland are exempt from the quarantine requirement under Art. 4 of the aforementioned Ordinance (e.g. long-distance lorry drivers, etc.). The persons concerned must report to the competent cantonal authority within two days.
Anyone who violates the quarantine or notification obligation commits an offence that can be punished with a fine of up to CHF 10,000.
In the case of employees subject to quarantine and their employers, the question of the obligation to continue to pay wages is likely to arise more frequently.
"Cases in which employees enter an area that is not yet considered a risk area at the time of entry but is classified as a risk area during their stay are likely to cause confusion and disputes."
It is clear that employers who send employees to a risk area must pay their wages for the duration of the quarantine. In such cases, the employee is prevented from working through no fault of his or her own(Art. 324 and Art. 324a CO).
Employees who go to a risk area are in principle not entitled to continued payment of wages by the employer. The reason for this is that the prevention of work (due to the necessary quarantine) in this case is not through no fault of the employee. If, on the other hand, the stay in a risk area is due to compelling personal reasons (e.g. family emergencies), the trip can be justified and the employee is not at fault. The employee is not prevented from working if he or she is able to work in quarantine, i.e. from home (home office). The salary is due in these cases.
Cases in which workers enter a territory (without being posted by the employer or without a justification) that is not yet considered a risk area at the time of entry, but is classified as a risk area during their stay, are likely to cause uncertainty and disputes. Currently, this question arises for the latest risk areas Mexico, Luxembourg and Bosnia-Herzegovina. Anyone entering from one of these countries since 23 July 2020 must also comply with the quarantine obligation. In addition, it can be assumed that the list of risk areas will be expanded in the future to include other areas as the number of cases increases worldwide.
Unfortunately, there is no clear legal answer to the question of whether employers must pay the wages during the quarantine of employees who have entered an area that was not yet considered a risk area at the time of departure, but has been reclassified as such during their stay. The circumstances of the individual case are likely to be decisive: At the time of departure, was it reasonable to expect that a reclassification as a risk area would soon take place? If so, on the basis of what factors must this be expected and when is this considered to be the fault of the employee? Employers may ask themselves why they should bear the financial risk of a reclassification by the Confederation for their employees (e.g. during their holidays).
From the perspective of the rule of law, it is to be welcomed that the Federal Office of Public Health (FOPH) has clarified that the quarantine obligation of a risk area applies as of the entry into force of the respective country list of the Covid 19 Ordinance Measures in the area of international passenger traffic. This is contrary to the view of the Confederation's Corona Officer, Stefan Kuster, who was of the opinion at the press conference that the Ordinance also applies retroactively.
The list of risk areas can be found here.
For further information on this topic, please contact Sebastian Wälti directly.