Geneva-based lawyer Renuka Cavadini from Page & Partners breaks down the rights of cross-border workers during the coronavirus pandemic.
The lockdown relaxation is well and truly underway, with things returning to normality for most of us. But if you are a cross-border worker and your work was affected during the pandemic, you might have a few questions about your labour rights.
A cross-border worker is someone who lives in a neighbouring country like France, Germany or Italy but crosses the border into Switzerland to work. Typically, cross-border workers are issued with a G-Permit.
Are you concerned about your salary because your employer’s business could not operate during the COVID-19 lockdown?
Were you ill during the lockdown? Was your contract amended during the lockdown? Were you fired during the lockdown?
This article may respond to some of your queries.
Your Swiss employer’s business had to close down during COVID-19 lockdown
Here I am referring to restaurants (without take-away facilities), hairdressers etc. that could not operate during the lockdown. I am not referring to the bankruptcy of a business.
Regardless of your domicile, as long as your employment agreement has not been terminated, you are entitled to 80% of your salary from your employer if you could not work at all.
Your employer should have applied for partial unemployment benefits (RHT) from the cantonal employment authorities and you should receive 80% of your salary instead of 100%.
However, the net amount you will receive will be less than 80% net because the social security contributions will be calculated on 100% of the salary. Your employer has the discretion of paying you the balance if he/ she chooses.
In March 2020, the Swiss Federal Council decided to broaden the circle of RHT beneficiaries to include on-call workers, apprentices, spouses/registered partners of employers and employees with fixed-term contracts.
However, since 1st June 2020, apprentices and the spouses/registered partners of persons in a position comparable to that of an employer, will no longer be entitled to RHT.
Your Swiss employer could only provide you with 50% of work-time instead of 100% as provided under your employment agreement
Regardless of your domicile, your employer should have applied for partial unemployment benefits from the cantonal employment authorities and you should receive 50% of your salary as usual and 80% of 50% i.e. an additional 40%.
However, the net amount you will receive will be less than 40% net because the social security contributions will be calculated on 50% of the salary. Your employer has the discretion of paying you the balance if he/ she chooses.
Tens of thousands of cross-border workers come from France to Switzerland each day. Photo: FABRICE COFFRINI / AFP
Were you ill during the lockdown?
If yes, you are entitled to 80% of your salary during period of protection (please click here for more information) as long as you provided a medical certificate to your employer within five days of your illness.
The conditions of your Swiss employment agreement did not change because of the lockdown.
Were you in quarantine and therefore unable to go to work?
If, you were in contact with a person infected with COVID-19 and you therefore need to be under quarantine, then this must be attested by a medical certificate.
During the quarantine, your employer can ask you to work from home. If however, work from home is not possible, you will in any case be entitled to your salary because your employer will claim it from the loss of earnings benefits (APG).
Was your contract amended during the lockdown?
Please note that your employment agreement cannot be amended unilaterally without your consent. In practice, many employees may accept the amendments to their agreements in order not to lose their jobs in this uncertain economic environment.
If your employment agreement was amended legally, and you only have a 50% employment agreement, you can request partial unemployment benefits from the social security authorities of the country of your employer, i.e. Switzerland.
Were you asked to come to work during the lockdown period?
If you were and your employer had put in place measures of social distancing and you were not ill or considered a vulnerable person, then refusing to work would be a breach of your employment contract.
If however, you needed to take care of your children because schools were closed and there was no other option of childcare available to you, then your employer had to pay you 80% of your salary through the “assurance perte de gain maladie” that he would have subscribed to – for his/her employees.
If you could not come to your place of employment in Switzerland because your employer did not provide you with the relevant signed form allowing you to cross the border from your home country to Switzerland, then it is the fault of your employer and he cannot be released from his duty to pay you your salary.
If however, you did not fill in the relevant form of your home country justifying your exit from your home country to work in Switzerland or you did not show your frontalier permit when leaving your home country to enter Switzerland, then you are responsible for not having turned up to work and your employer will be released from his/her obligation to pay you your salary.
Were you fired during the lockdown?
If yes, make sure your legal rights have been respected. Please see our specific article for further information.
In this situation, since you no longer have a Swiss employment agreement, you will be subject to the unemployment conditions of your home country and no longer of Switzerland.
This article was written by Renuka Cavadini, an attorney with Page & Partners in Geneva.