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

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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 since then been amended in several 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?

The basic rule communicated by the Federal Office for Public Health (FOPH) is that all employers should allow employees to work from home (home office) whenever possible.

In case home office is not be possible for certain employees, these employees (unless they are persons at high risk [see point 5 below]) must carry out their duties on their usual place of work.

Cross-border workers are explicitly allowed to enter Switzerland for professional reasons (and for this ground only). Therefore, employees should not be able to argue that they cannot come to work due to the reinstatement of border controls. Should it however be the case, 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 (or also older children with disabilities who need special care) due to the closure of schools and other day care facilities.

The allowance should be requested by the employees. If the employer continues to pay the salary, it is entitled to request payment of the allowance on behalf of the concerned employees. In the situation where both parents are prevented from working, they may claim only one daily allowance per day. The allowance is not paid during school holidays, unless the children were supposed to be taken care of by vulnerable persons (e.g. their grandparents) or if day care was to be provided by the school during this period.

It should also be noted that self-employed individuals in the same situation, provided they are insured with the old age and survivors’ insurance, 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?

Although this position is debated among scholars, we are of the opinion that as long as there is no nation-wide curfew, the employer must continue to pay the salary even in such a situation, because he is the one to bear the business risk according to the law.

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.

In order to minimize their exposure, employers should consider resorting to short-time work or “reduced working time” (see more information here). There are also various insurances that cover damages related to forced closures linked to epidemics. However, as these are voluntary private insurances (e.g. business interruption insurance, epidemic insurance), each company must check individually whether it has insurance coverage in the specific case.

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 specific COVID-19 compensation scheme for these individuals. This scheme is based on the compensation scheme for loss of earnings (covering 80% of the salary up to a maximum of CHF 196 per working day) and shall be granted only subsidiarily, i.e. 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).

On April 16, 2020, the Federal Council furthermore extended this right also to self-employed individuals whose business was not closed down but who suffer a loss of earnings as a result of the measures taken to combat the coronavirus, provided their income is between CHF 10,000 and CHF 90,000 per year.

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. Persons at high risk: 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 persons at high risk (persons aged 65 and over and persons suffering from serious illnesses) special protection. As the content of these articles gave rise to discussion, they have been amended several times since then.

In the latest version of the COVID-19 Ordinance 2 (status as of April 16), the obligations of the employer with respect to employees at high risk have been detailed (art. 10c).

As a rule of thumb, employees at high risk shall be given the possibility to remain at home, meaning that employer has the obligation to make home office possible and thus to take the required organizational and technical measures (§ 1).

If home office is not possible because of the nature of the employee’s work, art. 10c para 2 of the Ordinance provides that the employer shall assign the employee alternative tasks of equivalent nature that can be performed at home. The same salary shall be paid in exchange of this work.

Only if the needs of the business so require may the employer require from a vulnerable employee to perform his/her regular activities on-site. In such a case, para 3 of the said art. states that the employer must make sure that the workplace is arranged in such a way as to avoid close contact with other people (e.g. provide the employee with an individual office, or at least a clearly delimited area where the 2 meters safety distance is respected). If close contact is sometimes unavoidable, appropriate measures must be taken on the basis of the STOP principle (Substitution, Technical measures, Organizational measures, personal Protective equipment).

When para 1 to 3 cannot be respected, the employer must assign the employee alternative tasks of equivalent nature that can be performed on-site in compliance with the abovementioned conditions (para 4).

Before any measure is taken, the employer also has the obligation to consult the employee concerned (para 5). A partial solution is also possible, meaning that the employee can be asked to carry out part of his tasks from home and the other part on-site (provided the required conditions are met). According to para 6 of art. 10c, the employee concerned may decline to carry out work assigned to him or her if the employer fails to meet the requirements of para 1–4 or if the employee regards his or her personal risk of infection with the coronavirus for specific reasons as being too high despite the employer taking measures in accordance with para 3 and 4. The employer may request a medical certificate.

If neither home office nor compliance with the aforementioned health and safety recommendations is feasible, or if the employee refuses to work based on just grounds according to para 6, then the employer has to exempt high risk employees from their duty to work and continue to pay their salary. In such a case, we highly recommend applying for short-time work in order to cover 80% of the salary due. The taking of vacation time or the compensation of overtime may also come into consideration.

Employees at high risk 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).

In the event that a dismissal of these employees is contemplated, we recommend acting with particular caution. Although the Federal Council did not expressly state so in its Ordinance, it is not impossible that a dismissal of an employee at high risk could be considered unlawful in case it has been given on account of an attribute pertaining to the person of the other party or because the other party asserts claims under the employment relationship in good faith. It should also be remembered that the employer must show special consideration in the event of dismissal of older workers.

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