Employees absent from work for fear of contamination
I don’t want to go to work and am staying at home for fear of being infected by the virus responsible for the pandemic. What can I expect? Updated March 25, 2020
As long as no instructions have been issued by the authorities, this is an unfounded refusal to work. By law, your employer stops paying your salary. If you persist in your refusal, your employer is entitled to dismiss you with immediate effect. This refusal may also be regarded as an abandonment of post. Your employer may even be entitled to compensation (for example, a quarter of your monthly salary may be withheld). However, people at risk (over 65, or suffering from high blood pressure, diabetes or immune deficiency due to illness) must stay at home. These at-risk employees do their work at home . If this is not possible, the employer will grant leave and continue to pay the employee’s salary. The employer may request a medical certificate in accordance with Ordinance 2 on measures to combat COVID-19.
People in quarantine who have to stop working are entitled to APG benefits (all employees subject to AHV). These benefits amount to 80% of last income, but not more than CHF 196 per day. Benefits are paid monthly by the AVS fund. Entitlement begins on the day on which all conditions are met, but no earlier than March 17, 2020. Entitlement lapses at the end of the quarantine period, but no later than when ten daily allowances have been paid.
There is no entitlement to the allowance in the case of teleworking.
Memento: http://www.ahv-iv.ch/p/6.03.f
Form to be completed by the employer: https://www.ahv-iv.ch/Portals/0/adam/Content/LBIktL6xxEKdNmpn9xncag/Text/Formulaire_Corona_Allocation_F_web.pdf
Can compensation for reduced working hours be claimed for employees who stay at home for fear of being contaminated?
No, because the loss of work is due to a personal circumstance on the part of the worker. It is the worker himself who must assume his inability to work.
A number of people in my household have come down with the flu. The doctor has prescribed complete rest for two weeks. As they’re very weak, I’ll have to stay at home to look after them. Do I still have to go to work? Will I get paid if I don’t?
Upon presentation of a medical certificate, the employer is obliged to grant leave to a parent for the time required to care for a sick child, up to a maximum of three days per case of illness. Depending on the circumstances, an employee may also be released from the obligation to work for a longer period if justified by medical reasons. This dispensation from work is deemed to constitute an inability to work through no fault of the employee’s own, within the meaning of art. 324a of the Swiss Code of Obligations. In the event of illness, salary is therefore payable for a limited period. Parents are obliged to avoid prolonged absences by making alternative arrangements.
I’ve been infected by the pandemic virus and can no longer work. Do I still receive my salary?
Yes, as a general rule, your employer must continue to pay your salary. If you don’t have daily allowance insurance, your employer will continue to pay your salary in accordance with art. 324a/b of the Swiss Code of Obligations and the relevant scale (Bernese, Basel or Zurich scale).
As a general rule, policyholders are only entitled to daily sickness benefits if they are ill. This means that the sickness loss of earnings insurer will grant entitlement to benefits – in addition to other sickness-related work stoppages – if symptoms corresponding to or similar to those of the coronavirus (COVID-19) appear, or if an illness due to the virus is confirmed. The insurer assumes that, in such cases, a certificate of incapacity for work will be issued by a physician. However, it grants a deferment of 14 days.
However, there is no entitlement to benefits if employees have to be quarantined by order of the authorities or the company. In such cases, insured persons are not considered to be ill or unable to work.
The canton has closed schools and kindergartens. So my children are at home on their own, and I can’t count on help from relatives or neighbors. Do I still have to go to work? Will I get paid if I don’t? Updated March 25, 2020
According to the law, if the employee is prevented from working through no fault of his or her own, in order to fulfill a legal obligation (maintenance obligation of father and mother under art. 276 CC), the employer must pay the employee’s salary for a limited period of time under art. 324a CO. Under Art. 324a of the Swiss Code of Obligations, the employer must pay the employee’s salary for a limited period of time.
Parents are obliged to avoid prolonged absences by making alternative arrangements.
Parents with children under the age of 12 who have to interrupt their gainful activity because their children can no longer be looked after by a third party are entitled to APG benefits (all employees subject to AVS). The need must be caused by measures to combat the coronavirus (closure of schools, nurseries or childcare impossible because it was assumed by a person at risk, i.e. over 65, diabetic, etc.).
The earliest entitlement is March 19, as schools in Switzerland have been officially closed since March 16, 2020 (3-day waiting period).
The right ends when a solution for custody is found or the measures imposed by the Federal Council are lifted.
Benefits are not paid automatically.
You must complete the form below. Your AHV fund will examine your claim and pay the benefit. Benefits amount to 80% of last income, up to a maximum of CHF 196 per day. Benefits are paid monthly by the AHV fund.
If the gainful activity can be carried out in the form of teleworking, there is no entitlement to the benefit.
Memento: http://www.ahv-iv.ch/p/6.03.f
Form to be completed by the employer: https://www.ahv-iv.ch/Portals/0/adam/Content/LBIktL6xxEKdNmpn9xncag/Text/Formulaire_Corona_Allocation_F_web.pdf
Due to disruptions in public transport, I can no longer get to work on time and reliably; sometimes I can’t even get there at all. Do I still have to go to work? Will I continue to receive my salary?
You are excused if you arrive late for work or are unable to get to work. In this case, the employer is not obliged to continue paying your salary. If your work can be carried out at home, you are entitled to your salary.
What protective measures can an employee demand of his employer?
The latter is bound by labor law to protect the health and safety of its employees. In the case of the coronavirus, the FOPH’s recommendations on hygiene measures and social distance must be respected. It is therefore the employer’s responsibility to apply them. Reminder for companies.
Employers, in the event of a pandemic plan
When is the best time to draw up a pandemic plan?
Given the current situation, it is incumbent on companies to draw up a pandemic plan immediately.
What is the legal basis for drawing up a pandemic plan?
The FOPH recommends that companies draw up a pandemic plan. Further details can be found in the Swiss Pandemic Plan, Part III, Chapter 8:
The legal obligations and the division of responsibilities between the Confederation, the cantons and the companies are regulated in the following legal bases:
- Epidemics Act (Federal Act on the Control of Communicable Diseases of Man, LEp; RS 818.101);
- Labor law (Federal law on labor in industry, trade and commerce, LTr; RS 22.11);
- Ordinance on health protection (OLT 3; RS 822.113);
- Ordinance on the protection of workers against risks related to microorganisms (OPTM; RS 833.321);
- Recent pandemic plans drawn up by the FOPH and the cantons.
What are the consequences for salary payments when a company has to be closed by order of an authority?
As the company assumes the risks inherent in its operations and economy, the employee is entitled to receive his or her salary, even if this represents a heavy burden for the employer. However, depending on the circumstances, the employee may be required to make up for “missed” working hours.
The employer himself decides to close all or part of his business (e.g. for fear of the pandemic). What are the employer’s and employee’s obligations?
In this case, the employer is obliged to continue paying wages to the workers concerned. Workers are not obliged to make up these hours at a later date (except in the case of very short closures). Workers must deduct from their wages what they have saved as a result of being prevented from working, or what they have earned by performing other work, or the earnings they have intentionally foregone.
Can a company plan a company vacation to cope with employee absences?
In principle, no, even though the law stipulates that it is the employer who sets the dates for company vacations. However, the employee’s wishes must be taken into consideration, and the employer’s determination of the vacation date must be made sufficiently in advance for the employee to be able to make the necessary arrangements. In practice, a period of three months is generally accepted.
Workers are unable to keep to their working hours because restrictions make it more difficult for them to reach their workplace. Can the employer request reduced working hours (RHT) for these workers?
Yes, because transportation restrictions are reasons beyond the employer’s control.
Operations can no longer continue due to the arrival of the pandemic (combination of several circumstances, e.g. employees are ill or do not show up for work; deliveries are no longer made, loss of clientele, etc.). The employer temporarily closes the business. Can he or she apply for RHT?
Yes, except for people absent for personal reasons (illness, family obligations, fear).
Will the EU close its borders in the event of a pandemic? Will it also close them to Switzerland?
From a legal point of view, this is possible for both goods and people, if there are overriding reasons of public interest, safety or health.
In extreme cases, border closures may also be considered. It will be up to each member state to decide when the time comes.
Is the Swiss government authorized to ban the free movement of people?
Yes, under certain clearly defined conditions, both WHO law and the relevant exceptional provisions of Switzerland’s free trade agreements with third countries authorize Switzerland to close its borders to all persons (relevant sectors: AFDL and WHFH) for the protection of health.
What happens when I telework in France?
With regard to the issue of teleworking for cross-border commuters and the payment of social security contributions, we are dealing with an exceptional situation. A one-off period of working from home does not affect the liability of the frontier workers concerned. Thus, telecommuting, for a limited period and in the context of this crisis, does not allow the French authorities to consider that the employee works more than 25% of his or her working time in France, and is therefore not subject to French social security charges. The employees concerned remain subject to Swiss social security legislation.
What documents do border workers need to clear customs?
The employee must have completed the document entitled attestation de déplacement dérogatoire. If he or she has ticked the box for “travel between home and the place of work, when this is essential for the performance of activities that cannot be organized in the form of teleworking (with permanent proof) or business travel that cannot be postponed”, he or she must have the employer complete the document entitled justification of business travel.
Failure to present these documents may result in refusal of entry into Switzerland. The worker must also be able to show his work permit and prove his address in France (rental contract, etc.).
The Argos group team remains at your disposal for any further information.
