Legal Aspects of Coronavirus in Switzerland VI – Protection of Particularly Vulnerable Employees

The corona virus poses great challenges for society and the economy. A central issue is the protection of particularly vulnerable persons. This article aims to show who falls into this category and to present and briefly comment on the special regulations applying to such persons in their capacity as employees, which came into force on 17 March 2020 and have since already been revised twice, most recently on 17 April 2020.

• Who is considered a particularly vulnerable employee?

Article 10b of the Federal Council’s COVID-19 Ordinance 2 defines who is considered to be a particularly vulnerable person (person at high risk).

According to this definition, these are persons aged 65 and over and persons suffering from any of the following diseases in particular:

• high blood pressure
• diabetes
• cardio-vascular diseases
• chronic respiratory diseases
• diseases and treatments that weaken the immune system
• cancer

These categories are more closely defined in Annex 6 of the Federal Council’s COVID-19 Ordinance 2 (https://www.admin.ch/opc/en/classified-compilation/20200744/index.html#app6) based on the medical criteria (e.g. in the case of high blood pressure and diabetes, a special risk is only suspected if certain further characteristics are fulfilled, and the diseases which are suspected to pose a special risk are specified in more detail). 

The Federal Office of Public Health (FOPH) shall regularly update the list in Annex 6 on an ongoing basis in accordance with the latest findings. However, this list is explicitly not exhaustive. The clinical assessment of the risk in individual cases however is reserved.

An informal personal declaration by the employee towards the employer is sufficient to assert a special risk. The employer is entitled to demand a medical certificate. In this certificate, the doctor must only confirm that a relevant illness or special risk exists. No further health information is required.

In case of doubt or suspicion of abuse, the employer may order a medical examination by a doctor of his confidence. This medical examiner may not provide him any further health information either, but only his assessment of whether or not there is a special risk for the employee in question.

• What special regulations apply to particularly vulnerable employees?

Article 10c of the COVID-19 Regulation 2, which came into force on 17 March 2020, in its original version simply stated that particularly vulnerable workers must only work from home and, where this is not possible, must be released from work by their employers with continued payment of wages.

As of 21 March 2020, this regulation was revised and adapted so that employers must take appropriate organisational and technical measures to enable particularly vulnerable employees to work from home. In cases where this is not possible at the usual place of work due to the activity or due to a lack of feasible measures, it was determined that particularly vulnerable employees may also be (re)employed on site, however the employers must ensure through suitable organisational and technical measures that the recommendations of the federal government regarding hygiene and distance are respected.

Following criticism from the trade union side, this regulation was further revised and refined.

The current version, which has been in force since 17 April 2020, again makes it clear that particularly vulnerable workers should carry out their work duties from home wherever possible. Employers must take the appropriate organisational and technical measures to ensure that they can work from home.

Where their traditional work obligations cannot be performed from home, employers must assign the particularly vulnerable employees an equivalent substitute work that can be performed from home for the same remuneration.

Only where their presence on site (in whole or in part) is indispensable for operational reasons, particularly vulnerable workers – be in their traditional work or, for the same pay, in an equivalent substitute work – may still be employed on site.

In such cases, however, the following conditions must be met:

• The workplace is designed in such a way as to exclude all close contact with other persons, in particular by providing a single room or a clearly delimited working area, taking into account the minimum distance of 2 metres.

• In cases where close contact cannot be avoided at all times, appropriate protective measures are taken according to the STOP principle (substitution, technical measures, organisational measures, personal protective equipment).

According to the explanations of the FOPH on COVID-19 regulation 2, this STOP principle includes the following:

• Substitution: Activities that may involve close contact are replaced by other activities.

• Technical and organisational measures: By means of technical and organizational measures, activities that may lead to close contact are carried out in a different form (e.g. customer contact via electronic means instead of direct contact), or special protective devices are installed (e.g. Plexiglas panels) and protective measures are taken (e.g. disinfectants, etc.).

• Personal protective equipment: e.g. protective clothing, respiratory masks, etc.

The workers concerned must be consulted about the measures to be taken, i.e. they must also be given the opportunity to express their views on this matter and to make their own suggestions.

If these requirements are not met, the workers concerned may refuse to perform the work assigned to them.

Moreover, and this is worth noting, following the latest revision, particularly vulnerable employees may refuse to carry out work on site, even if all these conditions are met, if they consider the risk of infection with the coronavirus to be too high for them for special reasons despite the measures taken by the employer. It is true that the provision provides that employers may also require a medical certificate in this respect. It is unclear, however, what special reasons must be medically confirmed in such cases, since the clear wording of the provision states that the subjective feelings of the employees concerned are ultimately sufficient.

In all these constellations, the employers’ obligation to pay wages and salaries continues to exist without restriction – especially where employees justifiably refuse to perform work on site.

• Comments and further notes

This regulation is in line with the other currently valid recommendations of the authorities. Employees who are particularly at risk should only leave their home in exceptional cases and should be specially protected. They should not have to be afraid of an obligation to perform work on site.

The assertion of a special risk is easily possible for employees. A personal declaration is sufficient. A medical certificate must only be produced on request. The medical secrecy is maintained. The right to continued payment of wages is guaranteed for an unlimited period of time. On the other hand, employers must be able to expect flexibility from the persons concerned with regard to the work to be performed from home in return, especially in view of their extensive right to refuse work on site.

This regulation is a great challenge for employers. They must take all the necessary precautions to assign, wherever possible, work to their particularly vulnerable employees that can be done from home. Where the presence of these workers on site is indispensable, they may only use them under strict on-site protection measures.

Where the persons concerned legitimately invoke the right of refusal granted to them, employers are obliged to continue to pay their wages even if no work is performed. And this not only (as in the case of sickness/accident, for example) during a limited period based on seniority, but for as long as the current situation (and the current regulation) continues.  So far, employers have hardly been able to shift this additional financial burden. In particular, private daily sickness benefit insurances hardly provide any benefits unless there is also an incapacity to work due to illness as defined in their insurance conditions. At least, an application for short-time work for the employees concerned with a corresponding justification seems conceivable. However, this requires the consent of the employees concerned and their willingness to accept a 20% reduction in salary. It is imperative that policymakers provide for timely remedies for employers as well.

In the absence of special regulations, protection against dismissal for employees who are particularly at risk is governed by the ordinary provisions applicable to all employees. Accordingly, temporary protection against dismissal – in particular a lock-up period for dismissal depending on length of service – only exists within the scope of Art. 336c para. 1 lit. b of the Swiss Code of Obligations (CO), i.e. only if there is also incapacity to work due to illness. However, employer dismissals of particularly vulnerable employees are in any case very delicate from the point of view of factual protection against dismissal (protection against the abusive exercise of the right to dismiss) and must be well considered in each individual case. If an employer’s notice of termination is qualified as abusive by a court, it is neither invalid nor does the terminated employee have a right to reemployment. However, the court may order the employer to pay to the dismissed employee a substantial compensation of up to half a year’s salary.