26 October 2020

Piggy bank with face mask

Due to the COVID-19 pandemic, many employers have ordered a large part of their workforce to work remotely from home. First experiences have shown: Home office works and is also becoming increasingly popular among employees.

Many companies are now considering or have even started to integrate full or partial remote work as a modern and flexible form of working into their daily routine. Employees see corresponding advantages in the reduction of daily commuting and costs for meals, but also in additional flexibility in determining their time and location of work. For companies, making remote working more available may result in increased satisfaction and efficiency of their employees. In the medium term, companies may also look to reduce operating costs by reducing office space or locations.

With the introduction of more regular or permanent working from home, however, the question regarding the distribution of costs between the employer and employees becomes more prominent.

General legal framework

In principle, the employer has to provide its employees with an appropriate workplace and the employees have to perform their work in the company's premises. Absent any deviating agreement, the employer may thus neither oblige the employee to work from home nor may the employee unilaterally choose to do so.

According to the Swiss Code of Obligations (CO), the employer generally has to provide the employee with the equipment and materials, which are necessary to perform the work. The parties may, however, agree to deviate from this statutory default rule. It is therefore permissible for the parties to agree that the employee shall provide the necessary equipment and materials themselves, with or without compensation from the employer.

In contrast, the employer's obligation to reimburse the employee for all expenses necessarily incurred in the performance of the work is mandatory. Such expenses also include the employee's costs for food and accommodation when working outside the regular place of work. However, if made in writing, it is permissible to agree that such professional expenses shall be reimbursed in the form of a lump sum (e.g. by a weekly or monthly allowance), provided that the employee's effective costs are covered by this.

Special aspects with respect to home office

If an employee has to work from home because the employer fails to provide them with a (suitable) workplace, the employer must pay them a reasonable compensation for providing and maintaining a suitable remote workplace. The Swiss Federal Supreme Court has confirmed this in its decision 4A_533/2018 dated April 23, 2019.

Thus, if employees are not only permitted but also obliged to work from home, they are entitled to a pro rata contribution of the employer to the costs of their home office (including rent, internet/telecommunications, electricity, heating etc.). Such costs are not considered necessary professional expenses only if the employee has access to a suitable workplace in the company's premises and home office work is performed voluntarily or at least in the employee's own interest.

Health protection and ergonomics

Home office requires a high degree of personal responsibility on the part of the employees, also in terms of active participation in maintaining a healthy and safe workplace. However, the employer remains responsible for informing the employees, taking the necessary measures and organizing the work processes in such a way that health risks and excessive strain on the employee can be avoided.

This requires, most importantly, setting up an ergonomic home office workplace with a correct seating position, screen adjustment and sufficient lighting, in order to prevent eye complaints, headaches or tensions in the musculoskeletal system when working for hours on the computer in the same or an unfavorable posture.

Recommendations

For companies seeking to introduce or expand the possibility of working from home independently of COVID-19, it is recommended to conclude an express written agreement with eligible employees.

Such agreement should not only determine the employee's authorization (or requirement) and capacity to work remotely, but should also address the allocation of costs.

Many companies opt to provide their employees with the necessary basic technical equipment (such as laptop, screen, accessories etc.) and/or make a one-time contribution to the employee's costs for setting up their private home office (including, most importantly, a height-adjustable office chair).
This is may or may not be combined with an additional monthly allowance to contribute to the employee's expenses. The payment and amount of such allowance will depend on whether the employee generally continues to have access to a suitable workplace in the company's premises and is only authorized, but not obliged, to work from home.

Our Employment Law team is happy to assist should you have any questions regarding the matter.

Categories: Employment Law

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