The coronavirus has reached Switzerland and has a considerable impact on the Swiss economy and on individual companies.
Many companies are now asking themselves what they must do to fulfil their duty of care as employers. An employer must take the necessary measures to protect the health of his employees properly. It is very important that the employer complies with the hygiene regulations issued by the public health authorities and instructs his employees accordingly. Three different scenarios are discussed separately hereinafter.
Infection or Potential Infection of an Employee
If an employee falls ill with the coronavirus, the infected employee is released from the obligation to appear for work. Nevertheless, the employee remains entitled to continued payment of the salary by the employer or, if necessary, the daily sickness benefit insurance. The same applies if the employee becomes infected with the coronavirus during holidays abroad and, because of such infection, is unable to return to work in time.
Additionally, if an employee is suspected of being infected with the coronavirus, the employer must take all necessary and appropriate measures to protect the health of this employee and the other employees in accordance with its statutory duty of care. The employer must ensure that the coronavirus is not spread within the workplace. Therefore, employers are recommended to order employees who are under suspicion of being infected with the coronavirus not to appear at work and, if technically and practically possible, to allow the employee to work from home. During this period, the employee shall continue to be entitled to full payment of the salary.
Fear of Infection
If an employee is not infected with the coronavirus her- or himself, but has considerable concerns about her or his health and, therefore, does not want to show up for work to avoid infection, the question arises whether the salary is still owed.
The mere fear of possible infection does not justify the employee's refusal to work. The employee loses her or his entitlement to the salary payment. However, if an employee belongs to a specific risk group and is suffering from an existing health condition, this may in some cases mean that the employee in question does not lose her or his entitlement to the salary payment. If the employer fails to take necessary and proportionate protective measures, in breach of its duty of care, to protect the employees from infection, the refusal to work may be justified. Consequently, the obligation to pay the salary remains in force even if the employee does not turn up for work. However, it depends on the circumstances of the individual case.
In case of an officially ordered quarantine, the legal situation is unclear. It depends on whether the quarantine or the failure to perform work can be attributed to the risk atmosphere of the employer or the employee. In our opinion, an officially ordered quarantine cannot be attributed to the employer's general operational risk. A wide-spread officially ordered quarantine cannot qualify as a subjective incapacity to work by the employee. Consequently, there is no entitlement to salary payment. The reason for not turning up to work cannot be attributed to the employee, which results in the risk of salary to be borne by the employee rather than the employer.
The highest priority should be given to the protection of employees within a workplace. The employer must take the necessary protective measures at the workplace and implement the hygiene standards specified by the public health authorities. Compliance with these measures within the company should be reviewed regularly. If the employee stays away from work, it must be evaluated on a case-by-case basis whether the salary payment is still owed or not.
Our employment law team consisting of Stefan Müller, Patrick Näf, Sabine Taxer and Marius Jenny will be happy to answer any further questions regarding the employer's duty of care in connection with the coronavirus.