Employers are required to take appropriate measures to protect the health of their employees. In the event of an epidemic or pandemic, he/she must be particularly vigilant and take specific measures to limit contamination and work incapacity.
When an epidemic or pandemic is particularly virulent, the vaccination of the company's employees appears to be an adequate and efficient solution to stop the spread of the disease.
Federal or cantonal obligation
The Law on Epidemics allows the Confederation or the cantons to declare a vaccination compulsory for certain people, under specific conditions.
In the case of COVID19, the vaccine is strongly recommended for the entire population. But has it been made compulsory?
Obligation set by the employer
The freedom to be vaccinated or not is part of the employee's personal freedom. An obligation to be vaccinated is likely to affect the physical integrity of the employee.
An obligation to be vaccinated imposed by the employer is only possible under very strict conditions. The employer will often not be able to force his/her employees to be vaccinated.
However, the situation is more nuanced for health care personnel and employees considered vulnerable.
Refusal to be vaccinated
When an employer requires employees to be vaccinated and some employees refuse, the situation is delicate. Firing an employee for refusal is particularly risky.
Vaccination within the company
In order to encourage employees to get vaccinated, some companies organize vaccination sessions.
The implementation of such a vaccination may involve the processing of sensitive personal data of the employee.
For organizational reasons, can the employer demand to know whether his/her employees are already vaccinated, whether they wish to be vaccinated or the reasons for their refusal?
Incapacity to work
The Swiss Code of Obligations provides that if an employee is prevented from working through no fault of his/her own for reasons inherent to his/her person, such as illness, the employer must pay him/her his/her salary for a limited period of time.
The employer's obligation to pay wages assumes that the prevention of work is not attributable to the employee's fault.
If an employee who has refused to be vaccinated by choice tests positive for COVID-19, the question arises as to whether he or she is entitled to wages. Is it a culpable inability to work?