Insights | 24 April 2020
COVID-19 Ordinance 2: New measures to protect the health of vulnerable employees
On 16 April 2020, the Swiss federal government amended the Ordinance on Measures to Combat the Coronavirus (COVID-19) (“COVID-19 Ordinance 2”) of 13 March 2020[1] and adapted the regulations for employers concerning particularly vulnerable employees, i.e. “High-risk employees”.
Who is a High-risk employee?
A High-risk employee is a person who suffers from hypertension, cardio-vascular disease, chronic respiratory disease, diabetes, disease/therapy that weakens the immune system and cancer.[2] Affected employees must give notice to their employer that they are at high risk by a personal declaration. The employer may request a medical certificate.[3]
Obligation to take appropriate measures in the organisation of work
The Swiss government, based on its authority to legislate in cases of necessity, had decided on 17 March 2020 that High-risk employees should carry out their professional tasks from home and employers would take the appropriate organisational and technical measures to this end.[4]
According to the new measures ordered on 16 April 2020, if it is not possible for a High-risk employee to carry out normal working duties from home, the employer must, in derogation from the employment contract, assign equivalent alternative work that can be carried out from home for the same remuneration and take all organisational and technical measures required to this end.[5]
If for operational reasons the physical presence of High-risk employees is required at their workplace, they may carry out their duties at the workplace provided that:
- the workplace is organised to prevent any close contact with other persons, in particular by providing the affected employees with personal offices or separate working areas that allow employees to maintain a minimum distance of two meters between them; and
- where close contact cannot be avoided at all times, appropriate protective measures are taken in accordance with the so-called STOP principle (substitution, technical measures, organisational measures, personal protective equipment).[6]
Furthermore, if it is not possible for High-risk employees to work in accordance with the above-mentioned protective measures, their employer must, in derogation from the employment contract, assign equivalent alternative work at the workplace for the same pay.[7]
Before applying any measures, the employer must consult the employees concerned. High-risk employees may decline to carry out work assigned to them if the employer fails to meet the above-mentioned protective measures or if the employees consider that their personal Coronavirus infection risk is too high despite the employer taking all necessary measures. In such case, the employer may request a medical certificate.[8]
Finally, where employers cannot comply with the above-mentioned protective measures or High-risk employees rightly refuse the work assigned to them, said employees are released from their obligation to work and the employer remains liable to pay their salary.[9]
Employers’ rights and obligations
The COVID-19 Ordinance 2 seeks to restrict the pandemic by implementing new organisational and technical measures to be adopted by employers but does not provide for criminal or administrative sanctions should employers fail to adopt said measures, nor do they restrict employers’ ability to dismiss High-risk employees.
It is however advisable for employers to implement these new measures in order to protect the health and safety of High-risk employees and to comply with their corresponding obligations as employers.[10] In addition, employers who contemplate dismissing High-risk employees because the latter cannot work from home or at their workplace must document the reason for termination in order to demonstrate that all options to enable work from home, be occupied with equivalent alternative work or safely work at their workplace were unsuccessfully considered. Failing to do so, the employer runs the risk that employment courts rule the dismissal as abusive and order payment of an indemnity equivalent to up to six months’ salary.
Finally, these new measures do not affect the possibility for the employer to apply for reduced work time indemnity, regardless of whether the relevant employees (who must consent to the reduction, as their salary will be impacted) are High-risk employees or not.
Until when do these measures apply?
The measures entered into force on 17 April 2020 and are meant to remain in force until 30 September 2020.
References
[1] RS 818.101.24.
[2] COVID-19 Ordinance 2, Annex 6.
[3] Art. 10c (8) COVID-19 Ordinance 2.
[4] Art. 10c (1) COVID-19 Ordinance 2.
[5] Art. 10c (2) COVID-19 Ordinance 2.
[6] Art. 10c (3) COVID-19 Ordinance 2.
[7] Art. 10c (4) COVID-19 Ordinance 2.
[8] Art. 10c (5 and 6) COVID-19 Ordinance 2.
[9] Art. 10c (7) COVID-19 Ordinance 2.
[10] Art. 328 Swiss code of obligations.
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