The Federal Council's Ordinance 2 COVID-19 in 5 questions and answers

On 13 March 2020, the Federal Council urgently adopted an ordinance defining measures to combat and prevent COVID-19, based on the Federal Epidemics Act. The Ordinance has already been amended in certain respects and will certainly be modified further as the situation develops. Below we answer five practical questions in connection with this Ordinance.

1. Border controls: What should be done if an employee is unable to go to his or her usual place of work because of the controls?

In our view, the employee, not the employer, is responsible for this impediment. Thus, in this case, the salary would not be due. If the employee wishes to ensure that he/she can come to work, he/she is free to look for a temporary accommodation solution in Switzerland.

It should be noted that it is up to the employer to issue to any employee who so requests a certificate allowing him/her to prove his employment in Switzerland (work permission), failing which the employee’s absence could be attributable to the employer, if he/she is unable to get to work due to that fact.

On the other hand, if the authorities were to take the decision of a total curfew (no authorization to leave the house even to go to work), in our view the contractual obligations of both parties would no longer apply: the employee would no longer be obliged to offer his/her services and the employer would not be obliged to pay the salary.

2. Closure of schools: Does the employer have to continue to pay the salaries of employees who have to stay at home to take care of their children?

If the employee works from home, the employer must continue to pay his/her salary, while showing some understanding of the constraints faced by parents who are not always able to work as effectively since they also have to take care of the children. Parents, on the other hand, are obliged to organize themselves in order to find solutions enabling them to continue their activity, if necessary with certain adjustments.

However, if working from home is not an option and parents are unable to set up a suitable childcare solution, in our view, the employer cannot be obliged to pay the salary.

The Federal Council seems to share this view, since they have decided to introduce compensation on the basis of the loss of earnings allowance scheme, paid in the form of daily allowances corresponding to 80% of salary (capped at CHF 196 per day), for employees who have to stay at home to look after their children under 12 years of age. However, parents may claim only one daily allowance per day. This allowance is not paid during school holidays.

It should also be noted that self-employed individuals in the same situation may also benefit from a loss of earnings allowance but their right to compensation is limited to 30 days.

3. Closure of businesses: Does the employer have to pay the salary of its employees if his business is forced to close until further notice?

In principle yes, as long as there is no nation-wide curfew, because the business risk is borne by the employer. On the other hand, the employer will be allowed to deduct from the salary the amounts that the employee has saved or earned elsewhere because he/she did not work during this period.

Conversely, if the employer offers its employees the possibility to work remotely from home, the employee who refuses to do so will not be entitled to claim payment of his/her salary and risks to be subject to dismissal.

It should be noted that there are various insurances that cover damages related to forced closures linked to epidemics. However, these are voluntary private insurances (e.g. business interruption insurance, epidemic insurance), so each company must check individually whether it has insurance coverage in the specific case.

The concerned companies may also resort to short-time work or “reduced working time”. A compensation system, based on the loss of earnings allowance scheme, is being set up by the federal authorities for persons who would not be eligible to receive short-time work compensation (e.g. self-employed individuals).

4. Restrictions affecting service providers: What are the rights of self-employed individuals?

Self-employed persons (as defined in art. 12 of the Federal Act of 6 October 2000 on the General Part of the Law on Social Insurance) are not eligible for compensation based on short-time work. In order to correct the injustice that this represents for this sector of the economy – which is also severely struck by the restrictions put in place by the public authorities – the Federal Council has decided to set up a compensation scheme for these individuals. This scheme is based on the compensation scheme for loss of earnings, provided that the loss of earnings is not already compensated by another means (in particular by private insurance).

In order to be entitled to such compensation, the self-employed individual must demonstrate that his/her loss of earnings results from the restrictions provided for in art. 6 para. 1 or 2 of the Ordinance (prohibition of public and private events, closure of public establishments and of businesses offering personal services involving physical contact). Applications must be filed with the local compensation offices. Compensation is paid at the end of the month and is subject to social security contributions (OASI/DI/IC).

5. Vulnerable persons: What are the employer’s obligations?

When they amended the COVID-19 Ordinance 2 on 16 March 2020, the Federal Council included new provisions (art. 10b and 10c) destined to offer vulnerable persons (persons aged 65 and over and persons suffering from serious illnesses) special protection. Such at-risk employees shall be given the possibility to remain at home (whereas other employees are currently not entitled to do so).

On 20 March 2020, the Federal Council amended article 10c to specify that vulnerable persons do not have an entitlement to stay at home.

That being said, employers have the obligation to make home office possible for vulnerable persons and take the required organizational and technical measures. It is therefore the employer’s responsibility to provide the employee with the necessary tools (e.g. laptop, internet connection, etc.) to enable the employee to carry out his/her tasks from home or to reimburse him/her for the costs incurred in this respect. In order to avoid disputes over the payment of these costs, we recommend that employers draw up a list of the costs which are covered by the company and communicate it to the employees, indicating that any expense beyond this must be agreed with the employer in advance, failing which it will not be reimbursed.

If home office is not possible (because of the nature of the work or the absence of feasible measures), art. 10c para 2 of the Ordinance now specifically provides that employers have the obligation to take appropriate organizational and technical measures to ensure compliance with the recommendations on hygiene and social distancing of the FOPH at the workplace.

If neither home office nor compliance with the aforementioned health and safety recommendations is feasible, then the employer has to exempt vulnerable persons from their duty to work. Despite the clarifications brought by the Federal Council on 21 March, the legal consequences with regard to salary payment in such case is yet unclear. We are of the opinion that the legal regime of salary payment in the event that the employee is prevented from working (obligation of the employer to pay the salary for a limited time or daily sickness insurance coverage according to art. 324a CO) should apply in this case. Alternatively, the taking of vacation time, the compensation of overtime or the application for short-time work may also come into consideration.

Vulnerable persons should give notice to the employer that they are at high risk by making a personal declaration (the employer may request a medical certificate). However, if the employer is aware of pre-existing health issues, we highly recommend a proactive approach (i.e. reaching out to such employees).