COVID-19: What Employers Need to Consider When Employees Return to the Workplace – Protective Measures, Continued Salary Payments, Dismissals

What protective measures does the employer need to take?

According to art. 6 of the Labour Act, the employer has a duty to avoid all harm to the health of its employees. The employer therefore has to take all measures that are proportionate to the circumstances of the business, i.e. that are reasonable for the business in view of the technical and economic conditions. Due to the coronavirus pandemic, the employer also has to ensure that the additional requirements imposed by the Federal Council and the Federal Office for Public Health (BAG) for the protection of employees and other persons in the company are complied with. With regard to the reopening of shops and businesses, the BAG has developed model protection concepts for employers, which set out the following three basic principles for the prevention of infection at the workplace:

• Keeping distance, cleanliness, surface disinfection and hand hygiene;
• protection of people who are at especially high risk;
• social and occupational segregation of infected people and of people who have had close contact with infected people.

The BAG determines the order of protective measures that are to be taken by the employer in accordance with the so called STOP principle:

• “S” stands for substitution, according to which, activities which may involve close contact are to be replaced by other activities;
• “T” are technical measures (e.g. acrylic glass, separate workstations);
• “O” are organisational measures (e.g. separate teams, changed shift planning); and
• “P” stands for personal protective measures (e.g. hygiene masks, gloves). Personal protective measures should only be taken if other measures are not possible and adequate protective equipment is available.

Accordingly, employers are required to implement the above-mentioned protective measures in accordance with the STOP principle.

How should employees who are at especially high risk be dealt with?

Employees who are at especially high risk should receive special protection from their employer. These are people over the age of 65 and people with certain underlying medical conditions, such as high blood pressure, chronic respiratory diseases, diabetes, conditions and therapies that weaken the immune system, cardiovascular disease and cancer.

Employees who belong to this risk group should continue to do their work, but from home. If this is not possible, employers should assign to them, by way of derogation from the employment contract, equivalent substitute work that can be done from home for the same salary. However, if the presence of the employee at the workplace is indispensable for operational reasons, he or she can be required to come into work, provided that a minimum distance of two meters can be maintained at the workplace or, where close contact with other people cannot be avoided, appropriate protective measures are taken in accordance with the STOP principle. The employee may also be assigned equivalent substitute work at the workplace if by doing so the above-mentioned conditions can be met.

If it is not possible for employers to occupy employees who are at especially high risk in this way or if the employer does not fulfil its statutory obligations, the employer must place the employee on leave while continuing to pay its salary. If, despite the measures being taken by the employer, the employee considers the risk of infection with the coronavirus to be too high for special reasons, he or she may refuse to work and is also to be placed on leave with continued payment of its salary. There is no definition of special reasons, but a very anxious personality or special psychological impairments could constitute a special reason. The employer has a right to demand a medical certificate confirming such special reasons. If there are still doubts, the employer may ask the employee to consult an independent medical officer.

It is not clear whether employees who are at especially high risk are protected against dismissals. According to art. 336c CO, employees who are partially or entirely prevented from working due to illness are protected from dismissals during certain periods. Any dismissal by the employer during such a protected period is null and void. Employees who are at especially high risk may be prevented from performing their work in the contractually agreed manner due to their health. However, they are not ill in the sense of art. 336c CO, so that there should be no protection against dismissal during protected periods. However, the COVID-19-Ordinance-2 requires employers to provide especially high risk employees with a specific working environment or to comply with and implement certain protective measures for them. If it is not possible to keep such an employee occupied, the employee must be put on leave with continued payment of its salary. This constitutes a case of employer default within the meaning of art. 324 CO. Employer default means that the reason for an employee not performing its work is attributable to the employer. The employee is therefore not at fault. Accordingly, the employee is entitled to full and unlimited continuation of its salary payments.

If such an employee (who is at especially high risk) is dismissed because the employee is legitimately not able to perform its work, the dismissal is in our opinion not null and void. However, the dismissal may constitute a wrongful termination. In particular, the wrongful termination on account of an attribute pertaining to the person of the other party according to art. 336 para. 1 lit. a CO and the wrongful termination for revenge according to art. 336 para. 1 lit. d CO may apply. Although wrongful terminations end the employment relationship, they may trigger compensation obligations in the amount of up to six months’ salary.

What has to be considered regarding travelling to work by public transport?

The BAG recommends that working from home is continued as far as possible. The rules and recommendations for work and the workplace will also remain in force (Recommendations for the workplace and schools). However, for understandable reasons, employers may want their employees to return to the workplace. If the physical presence of employees in the company is necessary for operational reasons, the employer’s right to give instructions takes precedence and the employees have to return to the workplace.

The employer should take concerns about using public transport into account by enabling its employees to organise their working hours as flexibly as possible and to no longer travel by public transport during rush hours. However, the employer has no further obligations with regards to the commute of employees. In particular, the employer has no obligation to provide its employees with masks even if there is a recommendation for masks or even an obligation to wear masks on public transport.

Conclusion / Recommendation

Employers should continue to enable their employees to work from home. If, however, an employer wishes that its employees return to the workplace for reasonable grounds, the employer must take the necessary protective measures in accordance with the STOP principle. Employees who are at especially high risk must be given special protection by the employer and, if necessary, are to be placed on leave with continued payment of their salary. Employees who are at especially high risk are not protected against dismissal during protected periods but a dismissal may constitute a wrongful termination. Furthermore, the recommendations of the BAG and of the Federal Council regarding the protection of employees at the workplace must be complied with. The employer can implement any relaxations in the workplace environment by issuing instructions to its employees as to how they should behave in the workplace.