Continued payment of wages for work on call

On 13 January 2020, the Federal Council once again decided on far-reaching restrictions for the population and businesses in order to contain the spread of the Covid-19 virus. This hits many people and companies hard. For employees who work on call, i.e. for whom the duration of the working time within a certain period is not fixed and who perform their work on the orders of the employer, the question arises as to what the continued payment of wages looks like in the case of loss of working time through no fault of their own due to the Covid 19 pandemic.

On-call work is a form of part-time work and is divided into two categories, namely genuine on-call work and non-genuine on-call work. Based on this subdivision, it is first necessary to clarify what type of on-call work is involved in each individual case. Genuine work on call is characterised by the fact that the employer can call on the employee for an assignment determined by him, whereby the employee cannot oppose this call. In the case of genuine work on call, there is an obligation to continue to pay wages in accordance with Art. 324 CO. The salary is calculated on the basis of the employee’s average salary over a certain period of time.

The situation is different in the case of non-genuine work on call. In this case, there is no call-off obligation, which the employee cannot oppose. Rather, the employee is free to refuse the employer’s request and not to perform the work at the required time. A major difference to genuine work on call is that the relationship in the case of non-genuine work on call does not in principle constitute an employment contract. In the case of non-genuine work on call, doctrine and case law assume that there is no entitlement to continued payment of wages. This is justified by the fact that the employee has no duty to perform work and thus the employer has no duty to pay wages. An obligation to continue to pay wages would lead to an imbalance of interests, whereby the employer would be affected by a much greater risk than the employee.

A claim to continued payment of wages is therefore only given in the case of genuine work on call. Thus, persons who work on call but do not have to accept the call and do not receive a call to work in the case of the current tightened restrictions of the FOPH are excluded from the entitlement to continued payment of wages.