The influence of the Covid-19 Pandemic on labour law

In labour law the Covid-19 pandemic has brought many changes. Some time ago, the Federal Council has recommended to work from home, if possible, and has reduced the requirements for short time working. In recent weeks, Switzerland is back on the road to normality. Employers now have a number of obligations to ensure the safety and health of their employees. This article explains the extent of the safety precautions that are or may be taken.

The upcoming summer holidays will bring many problems regarding the different risks of infection in different parts of the world. For example, a person entering or re-entering Switzerland from a high-risk country^[1] must be quarantined. The question arises in such cases as to whether or not a wage entitlement exists for the quarantine period. First of all, it must be clarified whether the employer is authorized to prohibit the employee from traveling to such a country. In principle, in order to protect the employee’s, the employee is obliged to inform the employer of his or her travel destination. However, a prohibition to enter such a risk country does not fall within the employer’s right to issue instructions. However, the employee is not entitled to a wage for the possible quarantine after the trip to such an area. This is based on Art. 324a Abs. 1 OR, which states that a wage payment claim exists only in the event of an impediment to work without fault from the employee. However, there is a wage claim if a person is infected with the coronavirus due to bad luck or negligence and is prevented from performing his work.

A further question is whether the employer can force an employee to undergo a Covid-19 test. This is not possible, as it would be a major intrusion into the employee’s personality (similar things can be observed with compulsory vaccinations). However, the employer may waive the employee’s duty to work until the employee has undergone a test or has passed the 10-day quarantine. This can be justified by the employer’s obligation to protect the employee. Whether there is an entitlement to a wage in such cases must be examined on a case-by-case basis. 

At the moment there are still many employees in the home office. However, since the repeal of the home office recommendation by the Federal Council on June the 22, 2020, more and more people are working at their place of work again. This is because the employer is entitled to demand that the employee must return to work if all protective measures are in place. However, the employee could also order the employee to work permanently from home. This would constitute a change in the employment contract and requires the employee’s consent.

^[1] Covid-19-Verordnung Massnahmen im Bereich des internationalen Personenverkehrs