The employer is obliged to protect the personality of his employees. In particular, he or she must ensure that measures are taken to prevent them from suffering an occupational accident or becoming ill at work. This duty to protect is also in the employer's interest. It is in the employer's interest that his or her employees are not incapacitated for work.
Seasonal epidemics and pandemics can cause many problems in the workplace. From work inability, to the spread of the epidemic within the company, to the disruption of public transportation, managing these situations can be a headache.
Testing and Vaccination
In the context of the COVID19 pandemic, employers sometimes implement testing and vaccination plans to limit infection, work inability and quarantine within the company.
Can the employer force an employee to take a test and disclose the results? Can the employer require employees to be vaccinated or disclose to the employer whether or not they wish to be vaccinated?
The Covid-19 pandemic affected the whole world and caused many health and economic problems. It has led to special measures by the Swiss authorities and employers.
The adoption of a health protection plan is mandatory in every company. The employer must take specific measures to protect vulnerable employees.
In order to avoid quarantining employees, or even closing down an entire company, some employers have decided to systematically take the temperature of employees upon entering the premises or to impose a screening test on employees returning from holiday. However, the state of health of employees is a sensitive personal data. Does the employer have the right to carry out such checks?
Covid-19 has prevented many employees from working, whether due to contamination, public transport problems, shortages of company materials or the closure of borders and non-essential stores. In addition, employees are sometimes left without childcare due to school closures. The employee will sometimes be entitled to his salary. Depending on the case, he/she will have to turn to the employer or to the loss of earnings insurance (APG).
The entitlement to salary in case of incapacity to work requires that the inability to work is not attributable to the employee's fault. If the employee refuses to be vaccinated and then tests positive for Covid-19, the question arises as to whether the employee is entitled to his or her salary or whether the inability to work is due to fault.
Quarantine following a trip to a high-risk country, contact with an infected person or imposed by the employer as a precaution: the question of entitlement to salary in these situations is thorny.
During this particularly virulent pandemic, the authorities took measures to prevent its spread. Border closures, shortages, temporary company closures and/or lockdowns can make it difficult for a company to pay its employees. Employees will be entitled to their wages. The salary will be paid by the employer or, under special conditions, by the unemployment insurance, which will pay reduced work hours (RWH) to employees.
Under Covid-19, authorities have recommended that employees work from home whenever possible. Telecommuting is indeed an appropriate way to curb the epidemic or shelter some at-risk employees. However, telecommuting poses increased risks to the confidentiality of company data. Employers must also ensure that their employees respect work schedules and record their work hours and breaks.
The employer will need to ensure that the employee is provided with a workstation in their home that does not compromise their health. Does the employer have to contribute to the costs associated with telecommuting, such as electricity, telephone, rent or internet subscription?
During the Covid-19 pandemic, border restrictions were put in place, making it difficult or impossible for employees to commute across the border. Telecommuting can be a solution to these problems. However, the employer has to be careful because if the telework is prolonged, he may have to pay the social contributions of the cross-border workers in their country of residence.
When Switzerland is faced with an epidemic/pandemic, the authorities usually publish a manual that aims to limit the spread of the disease. It is important to put these preventive measures in place in order to keep the company running. In addition, if the employer does not take adequate measures and an employee becomes ill, the employer may be liable.
When a pandemic is particularly virulent or dangerous, it can affect many aspects of employees' daily lives. Cancelled flights or public transportation, illness, sick childcare... The employee can quickly be prevented from going to work.
The employer must pay the employee's salary insofar as the inability to work is inherent to the employee's personality and subjective, particularly in the case of illness.
When the employee's child becomes ill, few schools and nurseries will accept the child. The employee is given a few days' paid leave to arrange alternative care.
The situation is different when the employee is prevented from working due to objective circumstances that affect a large number of employees, such as a problem with public transport due to a pandemic. In this case, the question of salary arises.
In order to contain a seasonal epidemic, the idea of vaccinating all employees in the company seems to be a particularly effective measure. It is particularly difficult to implement.
Sending employees home
In order to limit the spread of the disease, the employer may be tempted to send some employees home. In some cases, it may be necessary to send employees home if the health of the employee, co-workers or customers depends on it. In most cases, the employer will have to pay the employee's salary.
If the company is unable to recover from such a crisis, it may be obliged to lay off some employees. When the number of dismissals reaches a certain level, it will be a mass redundancy. The employer will have to respect a strict procedure of consultation of the personnel before proceeding with the dismissals. In some cases, it may even be required to negotiate a social plan.