The coronavirus (2019-nCoV), which recently appeared for the first time in humans in Wuhan, China, is continuing to spread globally. Several confirmed cases have already been reported from France and Germany and sooner or later, we can expect the virus to appear in Switzerland. The risks for employers from a possible pandemic are often underestimated. It is important to be prepared for all scenarios.
Employer's duty of care
Employers are legally obliged to protect the health of their employees. They must therefore take appropriate measures to protect their employees from infection in the workplace.
At the same time, however, business operations must be safeguarded as far as possible, which requires a, sometimes delicate, balancing of the various interests while weighting the respective risks.
If the employer violates his duty of care because he has not taken reasonable measures to protect the health of his employees, employees may, under certain circumstances, refuse to perform their work, while their wages must still be paid. In most cases, this will probably require a prior warning. Official sanctions are also possible.
In the case of illnesses resulting from a breach of the duty of care, the employer may also be liable for damages and other compensation.
Appropriate measures
The Federal Office of Public Health has published on its homepage not only current information on the coronavirus but also various general information and tips on pandemic control. This includes in particular the "Pandemic Plan: Manual for operational preparation". This describes in detail measures to protect employees and maintain operations during a pandemic.
The new type of coronavirus is probably transmitted by droplet or smear infection similar to a common flu. Accordingly, in the event of a pandemic, employees should first be informed (e.g. by posting notices) about basic hygiene measures such as regular hand washing and sneezing/coughing into the crook of the arm. Cleaning personnel should be instructed to regularly disinfect critical areas such as door handles.
At the same time, employers should consider possible measures to ensure business operations at an early stage. In the event that large sections of the workforce are absent, measures should be taken and, in particular, arrangements made for deputies.
In the event of a pandemic, the employer's measures/instructions should be proportionately adapted to the threat situation (e.g. from refraining from shaking hands, keeping distance, use of communal spaces, meetings, business trips, home office, up to company holidays/closure). Employees must always comply with instructions; failure to comply can be sanctioned with proportionate disciplinary measures. Particularly exposed employees who have a lot of contact with clients or staff must be specially protected (e.g. by means of masks, gloves or Plexiglas panels between them and the clients).
Continued payment of wages during absences?
Employees who fall ill should not work at all and are entitled to continued payment of their wages due to their inability to work. If, however, someone stays at home for fear of infection, without this being ordered by the authorities or justified by the lack of protective measures on the part of the employer, there is no entitlement to a salary for this period as there is no incapacity to work. Rather, such behaviour justifies disciplinary measures, up to and including termination without notice in the event of persistent refusal to work.
In the case of absences for the care and support of relatives and dependant persons, the admissibility of the absence and thus also the obligation to continue to pay wages depends on the individual circumstances. As a rule, alternative care must be organised within a few days at the latest. As long as it is unacceptable to appear at work, there is generally a claim to continued payment of wages.
Due to their duty of loyalty, employees are obliged to inform the employer about illnesses in their immediate environment. If persons with whom employees have had direct contact have fallen ill with coronavirus, the employer must issue instructions to stay at home with continued pay, at least for the incubation period following the last contact.
The situation is different if employees cannot reach their workplace due to travel restrictions. Although these absences are excused, there is no obligation to continue to pay wages.
In the event of closure of a business by the authorities, there is an obligation to continue to pay wages only if the reason for this falls within the employer's sphere of risk (e.g. due to a lack of protective measures). If the employer closes the business of his own accord as a precaution, he is also obliged to continue to pay wages.
Our Employment Law team is happy to assist should you have any questions regarding the matter.
Authors: Marc Ph. Prinz, Gian Geel
