Certificate Requirement at the Workplace?

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As of 13 September 2021, employers are entitled to examine whether their employees hold a Covid certificate. What employers have to consider when introducing such a certificate requirement verification and which measures must be implemented precisely, is explained in our post.

Employers can now implement a Covid certificate requirement for employees, provided that such a requirement enables the establishment of appropriate protective measures or the implementation of a testing concept at the workplace (art. 25 para. 2bis Covid-19 Special Situation Ordinance).

Employers’ Duty of Care

Employers are obliged to provide for the welfare of their employees in accordance with article 6 of the Swiss Labour Act and article 328 of the Swiss Code of Obligations (CO). In particular, under Covid 19 regulations, employers must adopt preventive measures to protect their employees’ health.

The employer is thus obliged to ensure the protection of its employees within the company and must safeguard this protection by adopting adequate measures. According to article 25 para. 2 of the Covid-19 Special Situation Ordinance, these adequate measures must be assessed based on the STOP principle (Substitution, Technical Measures, Organisational Measures, Personal Protective Equipment).

Implementation of the Certificate Requirement at Work – What Is to Be Considered?

If employers wish to introduce the Covid certificate requirement as a protective measure or measure for implementing a testing concept, they are obliged by law to stipulate such a requirement in writing. Prior to the implementation of such measure, the employees, or the employee representatives, if applicable, must be consulted. The employee representatives or the employees must be granted a time limit to comment on the protective measure. We consider a period of a few days to be sufficient in general. For consultation, employers may use the ordinary means of communication in the company (e.g. by e-mail).

A verification of the certificate requirement by the employer can be used to limit access to the common areas, cafeteria, or meeting rooms, for instance, or even modify the organisation of working teams. Furthermore, the employer is authorised to exempt employees from the obligation to wear masks upon presentation of a Covid certificate. However, the certificate requirement does not release the employer from maintaining the remaining protective measures for employees in accordance with the STOP principle. Rules on hygiene, distance and ventilation continue to apply and home office also remains a recommended measure.

It is important to note that the result of the certificate test may only be used for the introduction of protective measures or for the implementation of the testing concept and may not result in a discrimination against employees. Any certificate check must meet the principles of data protection law. Where feasible, the Covid-light certificate, which does not indicate either the immunity or infection status, should be used.

Cost Coverage of COVID Tests When Introducing a Certificate Requirement

If a certificate requirement is implemented, the employer is obliged to offer a testing facility to employees who do not hold a Covid certificate. Whether the Swiss Confederation reimburses any costs for repetitive testing must be examined on a case-by-case basis. In any case, employers are obligated to bear the costs of individual testing of employees. Where the existence of a Covid certificate is only linked to facilitating measures, such as access to the common area, and if the employee can perform work without a certificate by means of other protective measures, employers are released from the obligation of providing testing facilities.

Should you have any questions regarding the introduction of a Covid certificate requirement, you can contact the following persons:

Thomas Kälin and Cosima Trabichet-Castan

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