Home office obligation due to the coronavirus

With the regulation on 18 January 2021, the recommendation of home office, which was valid until then, became mandatory. This brings with it many ambiguities, as it is very impractical or even impossible in many industries. The most important questions in connection with the new home office obligation are explained in the following article.

Can an employer oblige its employees to work in a home office?

In principle, the employment contract provides for a specific place of work. The unilateral change of this provision by the employer is not easily possible. Thus, the unilateral order to work from home is in principle not possible. However, due to the new ordinance of the Federal Council, employers are obliged to comply with the home office obligation stipulated therein, as long as there are no special circumstances to the contrary. The employer can therefore oblige employees to work from home while this special situation is still ongoing.

Is the employer obliged to allow the employee to work from home?

The new regulation of the Federal Council obliges employers to allow their employees to work in a home office. Exceptions to this are professions where home office is not possible due to their nature (e.g. construction professions, nursing staff, etc.) or in professions where it would not be proportionate.

Does the employer have to reimburse the costs incurred by the employee in connection with the home office?

First of all, the employer must provide the employee with all utensils necessary for the home office.
Furthermore, it must be decided whether the costs are for work equipment and materials or for expenses. Work equipment (in the home office: smartphone, computer, etc.) is usually not significantly changed by its proper use. The procurement of this equipment is usually a one-off expense. Materials are substances to be processed by the employee that have to be replaced regularly (in the home office: paper, print cartridges, etc.). Expenses are costs incurred by the employee in the interest of the employer. They are directly related to the performance of the work. In addition, they are indispensable for the proper performance of the work. Examples are telephony, licence and rental costs.
Costs for work equipment and materials are in principle to be borne by the employee, although the contract may stipulate otherwise. Expenses for the performance of work, on the other hand, are to be borne by the employer. The employer cannot pass these on to the employees. It should be noted that expenses for voluntary home office are not to be borne by the employer. 
However, with the ordinance of 18 January 2021, the Federal Council has ordered an exception. In its view, no reimbursement of expenses must be paid during the period of compulsory home office. (Art. 10 para. 3 Covid 19 Ordinance)

How are the provisions of the Labour Code to be interpreted in the home office?

The provisions of the Labour Code also apply in the home office. Thus, regulations regarding rest periods, prohibition of night and Sunday work, etc. also apply without restriction in the home office.

How is the recording of working hours regulated in the case of a home office?

In the home office, as in the normal case, the employer has a duty to record working time, unless there is an explicit exception. This duty includes the recording of working time and rest time. It is important that the recording of working time is also carried out correctly in the home office. Standardised records that do not correspond to the facts are inadmissible.

How can the employer check compliance with working time and is it possible to monitor the employee?

Working time can be recorded electronically or in analogue form. If controls are desired that are more far-reaching, such as the setting of certain reaction times, this is also possible. Such rules would allow for better control of work performance in the home office.
However, control actions that fall within the scope of monitoring are usually not permissible. Surveillance of an employee by means of monitoring and control systems, by means of which activities or behaviour can be recorded, is generally prohibited. Such measures are only permitted if they are necessary for reasons other than behavioural monitoring. In addition, anonymous monitoring must first reveal a certain suspicion.