27 April 2020

Back to work despite COVID-19: Duty of care versus right to give instructions

Since 27 April 2020, the Swiss Federal Council allows the reopening of various previously closed businesses subject to certain requirements. After the first wave of COVID-19 cases in Switzerland has subsided, a gradual return to normality should and must take place - also in the workplace. Employers have to reconcile their duty of care towards employees with company interests.

First reopenings with protection concepts

Many businesses open to the public have been closed by the Federal Council in order to contain the COVID-19 pandemic. These include restaurants, bars, nightclubs, markets, entertainment and leisure facilities. Some businesses that were previously closed (e.g. hardware stores and garden centres, hairdressers, self-service facilities) have now been allowed to reopen on 27 April 2020, provided that protection concepts ensure that the risk of infection is minimized for customers and employees. Standard protection concepts are available online.

Protective measures

First priority is the safety of the employees. The employer must take all reasonable and appropriate measures within the scope of his duty of care to protect his employees from infection at the workplace. All involved interests have to be weighted against each other in each individual case in order to determine the appropriate measures.

According to the Swiss Federal Office of Public Health ("SFOPH"), the following basic principles should be observed to prevent transmission of COVID-19:

  • Keeping distance, cleanliness, surface disinfection and hand hygiene;
  • protection of particularly vulnerable persons;
  • social and occupational segregation of sick persons and of individuals who have had close contact with them.

The SFOPH has issued detailed recommendations for the working environment.

According to the SFOPH, the basic sequence of proportionate protective measures should be based on the STOP principle:

S. Substitution (e.g. home office);
T. Technical measures (e.g. Plexiglas walls, separate workstations);
O. Organisational measures (e.g. separate teams, shifts);
P. Personal protective measures (e.g. hygiene masks, gloves).

A distinction must be made between official recommendations and legal obligations of employers. In principle, employers are only obliged to take appropriate protective measures, unless special regulations apply. Although working in home office is recommended wherever possible, there is no general obligation to do so. Hygiene masks are only recommended and must only be worn where close contact with customers or employees cannot be avoided. For example, in hairdressing or health care establishments.

Particularly vulnerable persons

Individuals of at least 65 years of age or with certain forms of chronic diseases affecting the respiratory tract, high blood pressure, diabetes, cardiovascular disease, cancer or immune deficiencies are considered to be particularly vulnerable by COVID-19.

Employers must generally allow particularly vulnerable persons to carry out their work in their home office. If this is not possible, employers shall assign them equivalent substitute work that can be done from home.

Only if their presence on site is indispensable, particularly vulnerable persons may work in their original function in the establishment. For this purpose, either close contact with other persons must be excluded (clearly demarcated working area with a minimum distance of 2 meters). If this is not possible, appropriate protective measures must be taken according to the STOP principle.

If the above conditions are not met, employees may refuse to work. The same applies if, despite fulfilling the above requirements, an employee considers the risk of infection with the coronavirus to be too high for him/her for special reasons. In this regard, psychological illnesses are to be considered in particular (e.g. anxiety disorders).

The employer may require a medical certificate concerning the aforementioned particular vulnerabilities or special reasons.

Instructions of the employer

Employees must comply with instructions from their employers regarding protective measures, as far as reasonable. In the event of non-compliance, disciplinary measures including dismissal may be taken.

On the other hand, employees may refuse to work under certain circumstances if their employer fails to take reasonable protective measures despite being requested to do so.

Data protection compliance

Any processing of employee data by the employer must concern suitability for employment or be necessary for the performance of the employment relationship (so-called "employment context"). In addition, the provisions of the Swiss Data Protection Act (e.g. transparency, proportionality) must be observed.

In our opinion, the legal duty of loyalty already requires employees to report COVID-19 symptoms or cases in their immediate environment. The employer has an overriding interest to be notified about such cases in order to be able to isolate the respective employee (e.g. in home office). Apart from the employee concerned, such reporting should be made possible on an anonymous basis (without providing personal data of third parties) as far as possible.

On the other hand, it would probably not be permissible for employers to direct the installation of COVID-19 tracking apps (which store contacts with other people) on devices of the employees.

If you have any questions on this topic, our employment law team will be happy to assist you at any time.

Categories: Employment Law

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