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Marcel C. Steinegger
The novel coronavirus, which has been declared a “public health emergency of international concern” by the WHO, continues to spread. Besides China, coronavirus cases have been confirmed in more than 30 countries. The virus has now also arrived in Switzerland and as a result, employers need to be aware of the employment legal issues involved. In particular, employers need to know what to do if employees refuse to attend work through fear of contracting the coronavirus at the workplace or if employees already have the virus. A number of different scenarios are possible, which we will briefly highlight in this blog post.
Principle: No work, no pay
In labour law the principle “no work, no pay” applies. If an employee is absent from work without an excusable reason (for example, an unjustified refusal to work by the employee or an inability to work for which the employee is responsible), the employee loses his or her entitlement to salary payments. An unjustified refusal to work may also result in disciplinary action for the employee, such as a termination without notice if the refusal to work is continuing. Under certain circumstances, the employer can be entitled to compensation in the amount of one quarter of the employee’s monthly salary.
An employee already has or suspects to have contracted the coronavirus
Employees who have the coronavirus may/must stay away from the workplace and are entitled to sick pay by the employer or a daily sickness allowance insurance for a limited period of time. The same applies if an employee has contracted the coronavirus while on holiday and is therefore unable to travel and return to work.
If employees suspect that they have contracted the coronavirus but do not show any symptoms, they should contact their doctor and consult with their employer as soon as possible. Employers have a statutory duty of care requiring them to take all necessary and reasonable measures to protect the safety and health of their employees. This includes a duty to ensure that the coronavirus does not spread to the workplace. The employers should therefore instruct their employees to stay at home if they suspect an infection with the virus. A requirement to work from home could be a good alternative.
An employee refuses to attend work through fear of contracting the virus
For employees who do not have the coronavirus but refuse to attend work through fear of contracting the virus at the workplace, the situation depends on whether the refusal to work is justified or unjustified. The employees are only entitled to salary payments if the refusal to work is justified.
The refusal to work is justified if either the employer or the authorities instruct that an individual employee stays away from the workplace. In addition, objective reasons, such as the failure to take protective measures by the employer or a lack of hygiene at the workplace, can justify a refusal to work. As mentioned above, employers have a statutory duty of care requiring them to take proportionate measures to protect the employees from infections at the workplace. If an employer breaches the duty of care, the employees have a right to refuse to work without losing their entitlement to salary payments by the employer.
However, if there are no instructions from the employer or the authorities and there are no other objective reasons for the refusal to work (a fear of contracting the coronavirus on the way to work or at the workplace is not sufficient), the refusal to work is unjustified and the employees are not entitled to salary payments. As mentioned above, an unjustified refusal to work can result in disciplinary action, such as a termination without notice if the refusal to work is continuing. Under certain circumstances, the employer can be entitled to compensation in the amount of one quarter of the employee’s monthly salary.
Restrictions on the freedom of movement and transport restrictions
If public transport is restricted due to the coronavirus outbreak and as a result employees cannot reach the workplace or arrive late at work, the absence and late arrival is excused, but the employees are not entitled to salary payments during this time. The same applies if employees are no longer able to leave an area by reason of it being sealed off by authorities or if employees require quarantine after contact with infected people. Or if employees are abroad in an area affected by the coronavirus and not allowed to travel back due to air traffic or other transport restrictions. In the event of such a super-personal circumstance which is not limited to individual employees but affects a large group of people (as may also be the case with natural disasters or political unrest), the salary risk is generally borne by the employee and not by the employer.
Any questions? Our team would be happy to help!
