Coronavirus: what are my rights?
Due to the current situation and the spread of the new coronavirus, more and more legal questions are arising for working families: What applies if my child is sick? Can my employer force me into isolation (quarantine)? Do I still earn my full salary? Here you will find the answers to the most frequently asked questions.
No pay? Not enough work?
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Questions and answers are being continually updated (in line with the measures and decisions currently being taken by the Authorities)
In case of illness
If a person has a fever, they are unquestionably sick and can go home. You are entitled to continued sick pay (Art. 324 a OR [Swiss Code of Obligations]). As always, you need a medical certificate / doctor’s note. However, you should make an appointment with the physician by telephone.
Call your physician and he will make a diagnosis and offer the best course of action. Even if you are under no obligation to inform your employer of the causes of your illness, you should inform him if you are infected with the Coronavirus so that he can take the necessary hygiene measures.
In principle, the employer can request a medical certificate from the first day. Let your employer know in writing that, due to the special situation, you have not yet received a medical certificate, but will do so as soon as possible. In order to avoid overburdening healthcare facilities, the Swiss Federal Office of Public Health (BAG in German) recommends that goodwill should be applied when requesting a medical certificate. It should be requested from the 5th day at the earliest.
Yes, your wages are still due. Your employer must enable you to work from home. If this is impossible due to technical reasons, you are still allowed to stay home. Your employer is obligated to approve the leave of absence and your wages remain due. You must provide the employer with a written statement indicating that you are exposed to a serious health risk due to the pandemic.
The employer may require you to provide a medical certificate confirming that you belong to a risk group. No diagnosis is required in the medical certificate (see Article 10b and c Corona - 2 Ordinance).
To avoid overloading the health facilities, the Federal Office of Public Health (BAG in German) recommends allowing some latitude when requesting a medical certificate, which should be demanded from the 5th day on at the earliest.
People of at least 65 years of age and those who have the following illnesses are particularly at risk: high blood pressure, diabetes, cardiovascular diseases, chronic respiratory diseases, diseases and therapies that weaken the immune system, cancer.
Wherever possible, your employer must allow you to work from home. If this is absolutely impossible due to technical reasons, he should allow you to compensate overtime, take holiday, or an unpaid leave of absence. At a minimum, he should give you enough time to find a short-term solution to adapt your living situation. If overtime or holidays cannot be taken, there is no entitlement to continued wages.
Unless the authorities have given instructions or initiated measures, this is an unjustified refusal to work. In such a case, there is no entitlement to the payment of wages and the employer can dismiss you immediately after a warning, and even claim compensation of up to a quarter of your monthly wages.
However, if your fears are justified because your employer does not comply with the hygiene measures required by the authorities (e.g. lack of hand sanitising options, no social distancing of at least two meters), you have the right to refuse to work and your employer must continue to pay you your wages.
Make your employer aware of this beforehand - preferably in writing or in front of witnesses. Give the employer a short deadline to remedy the situation. If your employer does not respond, you can refuse to work. Inform the cantonal labour inspectorate about the grievance. They can legally sanction misconduct.
The employer is obliged to take all necessary hygiene measures to protect the health of his employees, as defined in Regulation 3 of the Labour Law (ArGV3). However, the measures he takes must always be proportionate. In the current circumstances, it is appropriate to measure temperatures at the entrance to the plant or, if in doubt, to ask someone with fever to stay at home. If illness arises, the employer must pay an employee’s wages – as customary in any other sick-leave situations.
Serious operational disruptions, such as those that may occur with the Coronavirus, are exceptional situations that allow the employer to require his employees to perform work other than that normally carried out or even to relocate the place where the work is carried out. However, this presupposes that there is an urgent need, that the personal rights of the worker are respected and that the situation is temporary in nature.
However, the employer's rights in this realm are limited. The new place of work or other activity must be reasonable and must not harm the personality of the employee. An individual case assessment is always necessary. For example, family duties may make a more distant place of work unreasonable, and the new place of work can thus be refused. In any case, the additional costs incurred for such a change must be paid by the employer (Art. 327 a OR [Swiss Code of Obligations]).
An employer is allowed to issue instructions regarding the execution of work and the conduct of employees and may also give them special instructions (Art. 321 d OR [Swiss Code of Obligations]). Employees must follow these instructions regarding hygiene measures in the company, otherwise there could be sanctions under labour law (a formal caution, ordinary or even immediate termination of your employment contract or possibly liability claims). Instructions that relate to the area outside the company do not generally have to be followed.
Yes. Due to your duty of loyalty (Art. 321a OR), you must inform the employer so that he can take the necessary protective measures.
The right of the employer to issue directives is limited by the privacy rights of employees (Art. 28 ZGB [Swiss Civil Code]).
Vaccination could therefore not be enforced. Whether a vaccination can be required as a prerequisite for the performance of work depends on the type of business. At an infant intensive care unit, the interests are different than in the trucking industry. Therefore, contact with customers or work colleagues alone is not reason enough to require workers to be vaccinated against the flu.
In the case of official measures in respect of the population and/or certain groups of people (collective measures), which result in the parent not being able to work, the employer is obliged to continue to pay wages.
If the child cannot go to school or the nursery, even though the child is not sick, the parent is fulfilling her or his legal obligation by taking care of the child and staying away from work (Art. 276 ZGB [Swiss Civil Code]). The employee must take precautions to quickly organise child care by a third party. As long as this is not possible, the employer must pay the employee’s wages (analogue to an employee's illness).
You are entitled to wages for a limited period. The duration of this period depends on the scale applicable in your canton. The cantons use the so-called Berner, Basler and Zürcher scales (in German | in French | in Italian) . Each labour court can tell you which of these scales is used in your canton.
If the employer has taken out daily sickness benefit insurance for his employees, the question arises as to whether this will also cover absence due to childcare. The care of children is generally not covered by the insured events of daily sickness benefit insurance. This means that, unless otherwise stipulated in the insurance contract and / or the general insurance conditions, the employer remains liable to continue paying wages according to one of the scales mentioned above.
The employer is obliged to pay the wages for a limited period of time (see answer to the next question).
You are entitled to up to three days off upon presentation of a medical certificate to look after your child. Other family duties include bringing up children under 15 years of age and caring for relatives in need of care”. The child's parents must resume work as soon as external care is arranged. If three days are not enough, the Swiss Code of Obligations applies. It enables parents to stay away from work for the necessary time (Art. 324a OR). As long as an external care option is not arranged, the employer must continue to pay the wages - although you must do what is necessary to minimize the damage in order to quickly arrange external care.
Entitlement to compensation based on the measures announced by the Federal Council on March 20, 2020 for parents with children who have to stop working:
Parents with children under the age of 12 who have to stop working because childcare is no longer guaranteed are entitled to compensation.
No, it is not legal. When it comes to protecting the health of the general population, the state authorities make such decisions, not individuals such as employers.
You must therefore follow the instructions of the Cantonal medical officer on the one hand and the Federal Office of Public Health and the Department of Foreign Affairs on the other.
However, your employer can inform you that you are no longer allowed to come in to work for a certain period of time. He has to pay your wages during this time.
Depending on whether the place where you are located has been put under quarantine by the authorities, you are entitled to your wages.
But if you remain there in the absence of an official decision, you will have no claim to your wages and must yourself bear the risk that you will not return in time from your vacation. For example, the airline with which you booked has made a decision of its own to cease operating flights to Switzerland until further notice.
Closure of the company
If the company has decided to close its doors by its own initiative, the employer is obliged to continue paying your wages.
If the company has to close due to an official decision, the employee is entitled to continued payment of wages because the employer bears the operational and economic risk. The employer may still, however, claim short-time work compensation from an unemployment insurance fund of his choice.
Since you have been working regularly for a long time, it can be assumed that you are now entitled to an average number of working hours. If your employer is no longer able to do this, it will be in default of acceptance, i.e. it still owes you the average wage. For the calculation, the average of the last year or - if the employment relationship was shorter - a shorter period of time is used. Employers can apply for short-time work compensation.
According to the BAG website, take-aways are not included in the ordered closures. This means that companies without seats or standing places can continue to operate. However, the employer must ensure that hygiene measures such as washing hands or disinfecting are regularly possible. Social distancing must also be guaranteed, i.e. that you can be at a sufficient distance at the counter and can keep that distance from customers.
In general: According to Art. 329 a para. 2 OR [Swiss Code of Obligations], it is the employer who generally determines the time of the leave. However, the employer must take the employee's wishes into account as far as possible. As a rule, vacation entitlement is regulated by mutual agreement. In the event of disagreement, the employer has the right to determine one’s vacation unilaterally.
However, that right to determine the specific time of the vacation is subject to a number of restrictions. On the one hand, a unilaterally prescribed vacation must be notified in good time. Under normal circumstances, the ordered vacation must be notified three months in advance. Depending on a collective bargaining agreement, other periods may also apply. Finally, it must be assured that the recreational purpose of vacation is fulfilled despite a pandemic.
During the Coronavirus pandemic, the following applies:
Holidays cannot be enjoyed by people placed under official quarantine and your holiday entitlement cannot be reduced during that period.However, due to an urgent operational need, compulsory holiday can also be ordered without the otherwise usual advance notice period of 3 months. For employees from companies with insufficient activity due to the Coronavirus pandemic, this means that they have to accept a short-term holiday if there is no entitlement to short-time work compensation. Moreover, they must not be forced to take holidays exceeding the holiday entitlement accrued to that date.
No. Vacation is free time. The employer has no right to interfere in his employees' travel plans during their free time.
Your employer can send you home, but you are entitled to the payment of your wages. However, if there was a travel warning at the time of your trip, you are not entitled to wages because the inability to work is self-inflicted.
The decisive question is always whether the relevant event falls within the sphere of risk of the employer or the employee. The nature of the cause and the circumstances determine whether a claim to wages or continued payment of wages arises or whether there is no entitlement at all.
The fact that the airlines have cancelled many flights and prevent them from returning on time are reasons that do not fall within the risk sphere of the employer. In this case, there is no entitlement to wages.
If your employment contract states that you have to travel on business and your employer requests you to do so, you must follow your employer's instructions until the authorities have issued travel restrictions. If a travel warning from a Swiss Federal Office or of the corresponding office at the destination exists, an employee can refuse the business trip based on the travel warning
If you have health problems that could worsen in a risk area., the employer cannot send you on a business trip to a risk area, because he is obliged to protect the person of his employees in accordance with Art. 328 OR [Swiss Code of Obligations].
No, the employer may not terminate the employment contract for such a reason.
However, if you are prevented from working because you cannot travel to work due to disruption of public transport, your employer does not have to pay your wages for the lost working time.
If you are able to work from home, the employer is obliged to pay your wages.
On March 20, 2020, the Federal Council announced it will be possible henceforth to claim short-time work compensation for fixed-term and temporary employees (employees of temporary employment agencies).
Yes, because this is a case of an official decision by the authorities, so your entitlement to wages remains.
If overtime is necessary for operational reasons, the employee is obliged to work overtime as far as he/she is able to do so and this can reasonably be expected of him/her. Urgent family commitments, for example, make overtime unreasonable. However, the employer must also comply with the provisions of the Labour Code even in the event of a pandemic. A prohibition on taking leave would also be conceivable if there are overriding, extraordinary and unforeseeable operational interests.
However, if the employee suffers damage as a result of the postponement, the employer is liable to pay compensation.
In principle, the employer cannot ask you to compensate overtime through free time. The consent of both contracting parties - that is, the employer and yourself - is required.
According to Article 321 OR, however, the employee must participate in the compensation of overtime, i.e. agree to compensation if the overriding interests of the employer require it and if there are no major opposing interests of the employee. As a rule, it would thus be reasonable for the employee to compensate overtime through free time if the company now closes due to the pandemic or must reduce its activity.
On March 20, 2020, the Federal Council announced that the conditions for short-time work compensation would be relaxed. There is no longer an obligation to compensate for overtime before short-time work compensation can be requested. If employers can apply for short-time work compensation, employees no longer have to agree to overtime compensation and the employer cannot insist on it.
Lost hours and short-time work
When it comes to compensation for work absences related to the Coronavirus, a distinction must be made as to whether lost hours arise from an official measure or from a drop in demand due to fear of infection (economic reasons).
a) Official measures
With KAE, lost hours due to official measures (e.g. company closings, city closures, border closings) or other circumstances for which the employer is not responsible can be compensated. This is under the condition that the employers concerned cannot avoid the loss of work through suitable, economically viable measures or cannot make any third-party liable for the damage.
b) Economic reasons
With KAE, lost hours due to economic reasons and which are unavoidable can also be compensated. Economic reasons include both economic and structural reasons, which result in a drop in demand or sales.
The employer must demonstrate that the reason for the above is connected to the Coronavirus situation. Furthermore, all other eligibility requirements for receiving short-time work compensation must be met.
On March 20, 2020, the Federal Council announced that the conditions for KAE would be relaxed.
KAE can now be used for:
- Employees under fixed-term contracts
- Employees under temporary contracts (employees of temporary employment agencies)
- Individuals in an employer-like position (e.g. partners in a GmbH, who work as employees in the company for remuneration and people who work in the company of their spouse or registered partner). These people should be able to claim a lump sum of CHF 3,320 as short-time work compensation for a full-time position.
Waiting days are abolished, i.e. employers receive KAE from the first day.
There is no longer an obligation to compensate overtime before short-time work compensation can be requested.
Yes. As a measure against the effects of the Coronavirus pandemic, on March 20, 2020 the Federal Council announced that people in an employer-like position will henceforth also be entitled to short-time compensation (e.g. shareholders of a GmbH who work as employees for remuneration in the company and people who work in the company of their spouse or registered partner). These people should be able to claim a lump sum of CHF 3,320 as short-time work compensation for a full-time position. As the owner of the GmbH employed by the GmbH, you are therefore entitled to KAE.
The employer is in default if he does not utilize the employee's services. It does not matter whether this concerns a permanent position or a temporary position on an hourly wage. The only condition is that the work deployments (days / hours) of the employee paid by an hourly wage are fixed (and that the use of the employee’s services is not at the discretion of the employer).
If the temporary employment contract stipulates that the employee should work on Monday, Wednesday and Friday until the end of May, the wages are due accordingly, even in the event of a plant closure!
On March 20, 2020, the Federal Council announced that people on temporary or short-time employment contracts will also be entitled to short-time work compensation.
On March 20, 2020, the Federal Council announced that it is henceforth possible to claim short-time work compensation for people on fixed-term contracts and those on temporary employment contracts (employees of temporary employment agencies).
On March 20, 2020, the Federal Council announced that apprentices are henceforth entitled to short-time work compensation.
The introduction of short-time working incurs an 80% wage reduction of the previous wage Art 32 par. a para d of the Unemployment Insurance Act (AVIG). It is therefore imperative that each and every employee give his / her agreement and approval to this measure. An employee has the right to insist on the continued payment of the contractually agreed-upon wage. Needless to say, he / she runs the risk of losing his / her job should the employer be compelled to give notice for financial reasons. Given that the 20% wage gap constitutes a problem for many employees, a 100% wage compensation is needed in the event of short-time working being introduced. Unia is therefore doing its utmost to achieve this end.
The Swiss State Secretariat for Economic Affairs (Seco) publishes up-to-date information on coronavirus absence from work on its website. Here you will also find further FAQ on short-time work as a result of the corona virus:
ein German | in French | in Italian