COVID-19 is a pandemic that has affected the whole world and caused many health and economic problems.
In order to protect their interests and the health of their employees, employers have taken measures to limit the spread of COVID-19 within the company. In addition, the Swiss authorities have taken a series of measures that have had an impact on the employment relationship.
The employer is obliged to respect and protect the health and personality of his/her employees. In the face of the virulent epidemic of COVID-19, the employer must take specific measures, especially with regard to vulnerable employees. The adoption of a health protection plan is necessary.
In order to protect themselves against an epidemic within the company, some employers have decided to systematically take the temperature of their employees when they enter the premises. However, the state of health is a sensitive personal data of the employee. Do the employer's interests prevail over those of the employee?
When an employee is tested, the employer often asks for the COVID test result to ensure that it is not positive. Can the employee invoke medical confidentiality to refuse to present the test result to the employer? What can the employer do if the employee refuses?
Vaccination appears to be an effective way to reduce COVID19 cases in the company, work disability and quarantine. However, it is often not possible for the employer to compel employees to be vaccinated or to disclose to the employer whether or not they wish to be vaccinated.
Inability to work
If the employee is prevented from working through no fault of his/her own, he/she will be entitled to his/her salary, under certain conditions and for a limited period of time, or to benefits from the loss of earnings insurance.
In order to be entitled to salary, the employee's inability for which he is not at fault must be inherent to his personality, i.e. subjective. Purely objective reasons, affecting a large number of people, such as disruptions to public transport or the care of one's own children due to the closure of schools because of COVID-19 are not covered. In specific situations, the employee will be entitled to compensation from the loss of earnings insurance.
If the employee refuses to be vaccinated by choice, the question arises as to whether an inability to work in the event of contamination should be considered as a fault. If this is the case, the employer will not be obliged to pay the employee's salary during his or her incapacity to work.
Inability to return to work/delays
As part of the COVID-19 crisis, borders were closed and flights cancelled. Public transportation was disrupted. Some employees have been unable to return to work or have been delayed. How should the employer handle these situations? Should they pay employees' salaries?
The authorities have placed many people in quarantine, particularly because they were ill or had contact with an infected person. In such cases, the employee is entitled to his salary. Should they contact their employer or the loss of earnings insurance?
Some countries have been particularly affected by COVID-19. The Swiss authorities have placed these countries on the list of countries at risk, with a quarantine when they return for people who have stayed there. Employers sometimes impose a quarantine on their employees when they return from a vacation in a country that is not at risk, as a precaution.
Can the employer demand to know the destination of the employee's vacation and/or forbid him to go to a risky region? What about the right to salary if the authorities place the employee in quarantine upon his return?
Is the same true when the employer imposes a quarantine on his employee? Can the employer impose a screening test on the employee when he or she returns from vacation?
Employees have asked their employer to cancel their planned vacation because they cannot or will not go abroad due to the pandemic. Does the employer have to agree? Can they enjoy their vacation during a lockdown?
During the deconfinement, business resumed for some companies. Can the employer refuse to give holidays to an employee who requests it in order to safeguard the interests of the company?
Due to the closure of schools and nurseries, many parents have been left without childcare. Are they entitled to their salary or to compensation from the loss of earnings insurance? Is it the same when their child is sick?
COVID-19 has resulted in border closures and a slowdown in international trade. Businesses have experienced shortages of raw materials and stock-outs. In addition, in order to slow the spread of the disease, authorities have taken the decision to close some businesses temporarily. The employee will be entitled to his salary in these cases. It will be paid by the employer or, in some situations, by the unemployment insurance in the framework of the reduction of working hours (RWH).
During the various waves of contamination, the Swiss authorities resorted to teleworking. The employer must allow vulnerable persons to telework. If this is not possible, the employer is obliged to take specific protective measures or, failing that, to exempt them from performing their work.
Telecommuting, often hastily introduced by companies, is not without its problems.
The employee has access to sometimes confidential company data at home. The employer must act and guarantee the confidentiality of his data.
When the employee teleworks in a border state, the employer must be careful. If the telework exceeds a certain threshold, the employer may have to pay social security contributions in the employee's country of residence. A specific temporary regime has been introduced in the framework of COVID-19.
When telecommuting, away from their colleagues, some employees tend to let themselves go or take advantage of teleworking to look after their children or to engage in private activities. It is important for companies to remain competitive, even when teleworking.
Faced with these risks, employers are tempted to monitor their employees at home by more or less intrusive means. These surveillance systems are likely to infringe on the employee's personality and personal data protection.
If the company has legitimate reasons for wanting to ensure that its employees remain productive, the surveillance is subject to strict conditions of lawfulness, particularly with regard to the reasons for and proportionality of the surveillance system. It is imperative that the employer issue a directive that complies in all respects with the requirements of the Federal Data Protection Commissioner.
The employer benefits from more effective and less intrusive means than monitoring to ensure that his/her employees are productively teleworking.
Away from home, the home-based employee can sometimes find it difficult to keep to his or her schedule, which results in postponing work until later, in the evening or even on weekends.
In such a situation, the employee will not necessarily respect the legal rest and break times. It is imperative that the employer reacts.
Telework and risk of burnout
Telecommuting reduces the risk of contamination within the company. However, the employee can quickly find himself drowned in files and feel isolated, far from his colleagues. In severe cases, the employee may feel professionally exhausted and enter the spiral of burnout.
The employer must put in place adequate measures to mitigate the risks of overwork and burnout. Failure to do so may result in liability, particularly in the event of inability to work or dismissal.
When teleworking, employees are required to use their own computer equipment and internet connection and dedicate a room in their home to this. Does the employer have to contribute to the cost of rent, internet subscription or the purchase of a laptop? Is the employer required to purchase office equipment, such as an office chair, when the employee does not have adequate and ergonomic furniture at home?