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6 July 2022
Particularly hot summer days and hot spells are becoming more frequent in Switzerland. The heat can affect both the health and the work performance of employees. The employer, who is responsible for the occupational health of his employees, has a vested interest in creating a pleasant working environment with appropriate temperatures. Although personal preferences always play a role in the perception of a "pleasant" temperature, there are certain employment law requirements and directives from SECO (Swiss Federal Office of Economic Affairs) that must be observed by employers. If they do not ensure compliance with the legal requirements, they may face various legal consequences.
According to Article 328 para. 2 of the Swiss Code of Obligations (CO), the protection of occupational health as a consequence of the employer's duty of care requires the employer to take all measures that are necessary according to experience, applicable according to the state of the art and appropriate to the conditions of the company, insofar as he can reasonably be expected to do so with regard to the individual employment relationship and the nature of the work performance. The Swiss Labour Act (LA) specifies health protection in concrete terms.
Article 6 LA essentially repeats the provisions of private law and also states that employers must, in particular, design the operational facilities and the work process in such a way that health hazards and excessive demands on employees are avoided as far as possible. Furthermore, reference is made to regulation no. 3 to the LA. Article 16 of said regulation states, among other things, that the room temperature, air velocity and relative humidity are to be measured and coordinated in such a way that a room climate that is not detrimental to health and appropriate to the type of work is ensured.
The LA and its implementing regulations (including guidelines) contain various specifications on different climatic parameters that must be coordinated with each other. In the case of heat, particular attention must be paid to the specifications regarding temperatures in the workplace, which may require action on the part of the employer. Otherwise, high temperatures can lead to an undesirable stress situation and unacceptable working conditions. What exactly constitutes a "room climate that is not detrimental to health and appropriate to the type of work" varies not least according to the place where the activity is carried out.
The SECO guidelines on Article 16 of regulation no. 3 to the LA generally state that, from an occupational physiology point of view, air temperatures in the range of 23°C to 26°C are good for office work and sedentary work during warm periods of the year. For standing and walking, light to moderately heavy work, the air temperature should already be cooled down to between 18°C and 21°C, and for moderately heavy physical work and above, such as on assembly lines, temperatures should settle between 16°C and 19°C. The air temperature is the temperature of the air at the specific workplace under consideration.
Work in non-air-conditioned driver's cabs, e.g. in buses or cranes, is one of the most difficult activities in terms of climate and requires special protective measures. This is because the "cabin temperatures", which are significantly higher than the outside temperatures, place a heavy strain on the circulatory system and can impair concentration.
According to the SECO guidelines, higher temperatures must be tolerated in rooms without air conditioning during a hot spell. However, the employer must ensure that employees are protected from excessive exposure to sunlight and heat radiation caused by operating equipment and work processes. Suitable protective measures are, in particular, solar control glass, shading elements in the facade or sun blinds. In addition, the rooms should be ventilated artificially or naturally, whereby additional air circulation and cooling can be generated by fans or mobile air conditioning units.
Special attention should be paid to certain groups of people, such as pregnant women and overweight or elderly employees, because of their particular sensitivity to heat. In the case of elderly employees, employers generally have an increased duty of care. As part of the employment law under public law, Article 8 of the Regulation of the Federal Department of Economic Affairs, Education and Research on dangerous and arduous work during pregnancy and maternity (Maternity Regulation) declares work indoors at room temperatures above 28°C to be dangerous. The term "room temperature" is composed of the air temperature and the room air temperature, which measures the temperature of the room air in the centre of the room one meter above the floor.
The legal requirements and SECO recommendations for office buildings must also be observed in the home office if there are corresponding health risks for employees. This is the case because employers are also obliged in this situation to ensure the health protection of employees and to implement appropriate measures.
In contrast to other countries, e.g. Austria, in Switzerland there is no concept of a "heat-free" period during which work stops when the mercury rises to specific levels, even on construction sites or during cabin work. Nevertheless, special protective measures must be taken. These should take the form of protection against excessive exposure to the sun when working outdoors or air conditioning of the cabins. If the latter is not possible, compensatory measures, such as special break regimes, must be taken.
At room temperatures of over 30°C, greater vigilance is required in any case, since heat complaints can occur more quickly at these temperatures and performance losses are to be expected.
In the event of suspected violations of employment law provisions in the application of the LA, reports may be made to the enforcement authorities, which are usually the cantonal employment inspectorates. Such reports are handled on a confidential basis due to the official secrecy obligations of the inspectors. The inspectors may approach the employer and demand the implementation of appropriate protective measures in the interests of the health of the employees.
An order by the authorities may be accompanied by the threat of a fine in the event of non-compliance. In the event of persistent failure to comply with the legal requirements or official orders, the fine may ultimately become due. As a final measure, the use of the employer's premises or facilities may even be prevented, or the business closed for a certain period of time.
A violation of the public-law provisions of the LA with regard to health protection may also give rise to criminal liability on the part of the employer. According to Article 59 para. 1(a) LA, employers who intentionally or negligently violate the health protection regulations are liable to a fine of up to 180 daily penalty units. In the case of legal entities, the criminal investigation is directed against the members of the executive bodies, such as the board of directors, the managing partners and the individuals who are actually in charge.
Theoretically, the employees concerned can claim a breach of contract according to Article 97 CO in connection with the violated duty of care according to Article 328 para. 2 CO. In particularly serious cases, a refusal to work is conceivable after prior warning, in which case the employer is in default of acceptance and thus remains obligated to pay the salary. Ultimately, employees also have the option of giving notice.
Employers are legally obligated and well advised to protect the health of all employees. This also includes a pleasant room climate which not only serves the purpose of health protection and efficient work performance, but also has the pleasant side effect of promoting a good working atmosphere.
Measures must always be judged according to their appropriateness and proportionality. Good insulation by means of blinds, fans, mobile air-conditioning units, relaxed dress code and provision of water, as well as other compensatory measures, are easily implementable and effective means of providing relief during periods of extreme heat.
Our employment law team will be happy to answer any questions you may have.
Authors: Anela Lucic, Bettina Fischer
Category: Employment Law
Attorney at Law
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