10.6092/issn.1561-8048/10966
The coronavirus epidemic has hit Switzerland hard. Like many other countries, Switzerland has used restrictive measures to shut down public life and economic activities in large areas. In addition, various social security benefits have been provided, particularly in the event of short-time working. However, benefits were also made available for self-employed persons and employees affected by the official measures in other ways. In terms of labour law, the employer’s obligations to protect particularly vulnerable employees were increased.
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Kurt Pärli
Italian Labour Law e-Journal
Vulnerable employees
COVID-19 and Labour Law: Switzerland
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National Reports
2020-05-11
2020-05-11
2020-04-15
2020-09-15
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Kurt Pärli
2020/05/11
10.6092/issn.1561-8048/10966
University of Basel
1561-8048
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Vulnerable employees
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COVID-19 and Labour Law: Switzerland
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COVID-19 and Labour Law: Switzerland                                              Italian Labour Law e-Journal
Kurt Pärli                                                                       Special Issue 1, Vol. 13 (2020)
kurt.paerli@unibas.ch                                              Covid-19 and Labour Law. A Global Review
                                                                                               ISSN 1561-8048
                                                                https://doi.org/10.6092/issn.1561-8048/10966




               COVID-19 and Labour Law: Switzerland
                           Kurt Pärli*

                                                 Abstract
     The coronavirus epidemic has hit Switzerland hard. Like many other countries, Switzerland has
     used restrictive measures to shut down public life and economic activities in large areas. In
     addition, various social security benefits have been provided, particularly in the event of short-
     time working. However, benefits were also made available for self-employed persons and
     employees affected by the official measures in other ways. In terms of labour law, the employer’s
     obligations to protect particularly vulnerable employees were increased.
     Keywords: Covid-19; Labour Law; Social security benefits; Short-time work; Vulnerable
     employees.




 1. Legal basis of the governmental measures

    Switzerland is a semi-direct democracy with a strong federalist structure, in which the
 cantons have a great deal of autonomy, particularly in the area of health care. However, the
 Federal Constitution provides in Art. 185 para. 3 that "The Federal Government may,
 directly based on this article, issue ordinances and orders to meet existing or imminent great
 disturbance of the public order, the external or the inner security. Such ordinances have to
 be limited in time". In the event of an epidemic, the Federal Epidemics Act is also relevant.
 This law differentiates between a particular and an extraordinary situation. In an
 extraordinary situation, the powers to combat the epidemic are transferred from the cantons
 to the Confederation. On 16 March, the government (in Switzerland, as you know, there are
 seven equal members) decided that an extraordinary situation now existed. Since then, the
 government has issued numerous ordinances that are directly applicable throughout the
 country1.
    At the time of writing, the federal government in Switzerland, in line with many other
 states, has closed borders, schools, bars, restaurants and all shops that do not sell food or
 other important goods (for example medicines). In addition, sporting and cultural events
 have been banned and a prohibition of assembly for groups of more than five people has
 been issued. Meetings of five or less persons are only allowed if social distancing rules are

 *
  Professor for Social Private Law, University of Basel, Switzerland.
 1See the main ordinance: https://www.admin.ch/opc/en/classified-compilation/20200744/index.html . For
 an overview of all "covid-19"-regulations: https://www.buchzik.ch/lexcorona
    Kurt Pärli                                                              Italian Labour Law e-Journal
                                                                           Special Issue 1, Vol. 13 (2020)
                                                              Covid-19 and Labour Law. A Global Review
                                                                                Section: National Reports




observed. A general exit ban has not been imposed, however an unprecedented official
information campaign has encouraged the population to stay at home. All these measures,
which were adopted without the participation of Parliament or the possibility of a popular
referendum, which normally exists in Switzerland, infringe on fundamental rights guaranteed
in the Constitution. However, the government was faced with the dilemma of protecting the
fundamental right to life and health, which required measures to restrict freedom.


2. Regulations in the field of social security and labour law

   The shutdown of numerous shops and the situation in hospitals heavily burdened with
Covid-19 patients quickly required official measures in the areas of labour law and social
security. The Federal Council recognized that social acceptance of the restrictive measures
(both in terms of personal freedom and, in particular, economic activities) that are necessary
from an epidemiological point of view would depend on the provision of rapid and readily
accessible support to the persons affected. This is particularly important in order to avoid
exacerbating the coming economic crisis and to mitigate its consequences.


2.1 Expansion of entitlement to short-time working compensation

   Unemployment insurance, which is mandatory for all employees, uses the instrument of
short-time working. Employees receive 80% of their wages from the unemployment
insurance and can thus keep their jobs. Short-time working is approved by the competent
authorities in the event of an exceptional situation. Immediately after the closure of shops
by the authorities, the Federal Council recognized the coronavirus crisis as a reason for short-
time working and the eligible group of persons was considerably expanded compared to the
normal situation. According to the relevant ordinance2, even temporary employees or
persons in employer-like positions have a right to short-time work compensation.


2.2. Introduction of new social security allowances

   On the basis of emergency legislation, the Federal Council has also introduced new social
security benefits for self-employed persons and for employees who are prevented from
working because of official measures in connection with coronavirus. Particularly
noteworthy is the setting up of social security benefits for self-employed persons due to loss
of earnings.
   The background to these emergency measures is as follows:



2 https://www.admin.ch/opc/fr/classified-compilation/20200805/index.html (no official translation in
English available).

https://doi.org/10.6092/issn.1561-8048/10966                                                             2
 Kurt Pärli                                                               Italian Labour Law e-Journal
                                                                         Special Issue 1, Vol. 13 (2020)
                                                            Covid-19 and Labour Law. A Global Review
                                                                              Section: National Reports




    §   The official measures to fight against the epidemic are far-reaching, particularly with
        regard to school closures. This poses a problem for employed persons in that smaller
        children in particular cannot simply be left to fend for themselves. Parents have an
        ethical-social duty to look after their children and it is so far unclear whether an
        employer has to pay the salary in such a situation. The situation is even more
        precarious for self-employed persons, because the risk of looking after the children
        themselves due to the closure of the schools is not insured and probably not
        insurable.
    § As a result of the orders in COVID-19 Ordinance 2, numerous companies have had
        to close down temporarily and countless events cannot take place. The question here
        is whether a company in this situation must continue to pay wages despite the lack
        of employment opportunities. The decisive question is whether or not an epidemic or its
        consequences are part of the employer risk. This question has not yet been settled by the
        highest court. The views in jurisprudence are divided.
    § According to the current legal situation, self-employed persons have to bear the risk
        of the economic consequences of an epidemic entirely on their own. There is neither
        an employer against whom a wage claim can be asserted, nor is there a claim to
        unemployment insurance benefits.
   The law now allows self-employed persons and employees in the aforementioned
categories to be entitled to social security benefits.


2.3. Special provision for health workers

   Some of the Covid-19 regulations directly concern the working conditions of hospital
staff. Art. 10a para. 5 of the Covid-19 ordinance Nr. 2 states that the regulations on working
hours and rest periods according to the Labour Law are suspended in those hospitals that have
experienced a massive increase in workload as a result of COVID-19 illness. In a first version
of the regulation, this also affected provisions on overtime compensation and
indemnification. However, after broad protests, the government changed the decree.
Overtime bonuses are now also payable in the coronavirus crisis.


2.4. Particularly vulnerable workers

   The Covid-19 regulations also take into account the increased risk to certain persons.
Particularly vulnerable persons should stay at home and avoid crowds. Persons over 65 years
of age and persons who have the following illnesses in particular are considered to be
particularly at risk: high blood pressure, diabetes, cardiovascular diseases, chronic respiratory
diseases, diseases and therapies that weaken the immune system, or cancer.
   The Federal Council faced a difficult task. How can particularly vulnerable employees be
protected from being infected with the coronavirus on the way to work and during work at
the workplace? On the one hand, this is important to protect the health of these employees. In

https://doi.org/10.6092/issn.1561-8048/10966                                                           3
 Kurt Pärli                                                                       Italian Labour Law e-Journal
                                                                                 Special Issue 1, Vol. 13 (2020)
                                                                    Covid-19 and Labour Law. A Global Review
                                                                                      Section: National Reports




contrast to people who are not particularly at risk, the effects of coronavirus infection are
extremely serious. On the other hand, the protection of particularly vulnerable persons also
has an overall social dimension (protection against overwork in hospitals and clinics). But how
can this necessary protection be designed in such a way that the measures are acceptable for
individual employees and the economy as a whole? And how can contradictions of judgement be
avoided, in which particularly endangered persons should virtually go into self-isolation even
without any concrete suspicion of infection, and at the same time be obliged to accept a
possibly long journey to work and encounters with a large number of people at the
workplace?
    The new version of Art. 10b and 10c of the Covid-19 Regulation adopted on 16 April
represents an overall successful attempt to reconcile the diverging interests. The cascade-like
regulation provides the companies and their employees with a framework for action within
which various solutions adapted to the specific company conditions are possible. Employers must
allow vulnerable employees at risk to work from home and must undertake the necessary
organisational and technical measures, and if necessary, allow them to undertake appropriate
alternative tasks. If a person at especially high risk is only able to perform their work at the
workplace, the employer must adapt the workplace or working procedures accordingly to
ensure that the person is protected. If the employer fails to do so, the employee at risk must
be placed on leave but continue to receive their wages. If it is not possible for the employee
concerned to work from home and if they consider the risk to their health to be too great,
they may refuse to work at the workplace. The employer must then place the employee on
leave while continuing to pay their wages. Employees at especially high risk must provide
their employer with a personal declaration to that effect. The employer may request a
doctor’s certificate.


3. Summarizing assessment

    Extraordinary times call for extraordinary measures. The Federal Council has recognised
that social acceptance of the restrictive measures that are necessary from an epidemiological
point of view also depends on the provision of rapid and unbureaucratic support to the
persons affected. This is particularly important in order to avoid exacerbating the coming
economic crisis and to mitigate its consequences. The various measures taken by the Federal
Council must therefore be seen in an overall context. Once again, the importance of the
instrument of short-time work compensation is evident. It is also true that the group of those
entitled to compensation has been expanded, at least for the duration of the epidemic. On
the basis of experience, the regular legislator can then - hopefully once again - examine
whether it makes sense to extend eligibility for compensation for less dramatic situations.
    The new framework to protect vulnerable employees (Art. 10b and Art. 10c Covid-19
Regulation 2) is an important step in the right direction. In order to ensure that the
sophisticated protection concept is effective in favour of particularly vulnerable workers and in the interest
of public health, the courts are called upon to interpret the existing provisions on the temporal
and material protection against unfair dismissal in the interest of the Covid-19 Regulation.

https://doi.org/10.6092/issn.1561-8048/10966                                                                   4
 Kurt Pärli                                                           Italian Labour Law e-Journal
                                                                     Special Issue 1, Vol. 13 (2020)
                                                        Covid-19 and Labour Law. A Global Review
                                                                          Section: National Reports




Furthermore, in view of the potentially heavy financial burden on employers, a solution
should be sought to finance employees released from work with full pay through Social
Security.




Copyright © 2020 Kurt Pärli. This article is released under a Creative Commons Attribution
4.0 International License




https://doi.org/10.6092/issn.1561-8048/10966                                                       5
