Geneva-based lawyer Renuka Cavadini from Page & Partners breaks down the rights of people working from home during the coronavirus pandemic.
During the pandemic, many employees found themselves working mainly from home – either part-time or full time – without really knowing their rights in this respect.
With a potential second wave of infections, it is possible that working from home will again be strongly recommended by Swiss authorities and may even become a new norm.
In this article, “working from home” (WFH) will be referred to as any activity carried out outside the employer's business premises by means of IT tools (computer, tablet, etc.).
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1. WFH and holidays
Article 329a al. 1 CO provides for a minimum holiday entitlement of four weeks per year of service or calendar year, unless agreed otherwise in writing. In the case of part-time work, the holiday entitlement must be calculated in proportion to the rate of employment.
The employee is required to take at least two consecutive weeks of vacation. It is the employer's prerogative to set the date of vacation taking into account the employee's wishes as well as the interests of the company (art. 329c al. 2 CO)
WFH does not affect an employee's right to vacation. The Employer cannot impose vacation on an employee during confinement. However, the employer may nevertheless impose a vacation on the employee with three months' notice.
In exceptional circumstances, such as under COVID, it is possible for the employer not to respect this three-month notice period or to delay the employees vacation for a certain period of time. The legal action taken by the employer needs to be analysed in the particular situation.
If the employer benefits from reduced working hours (RHT) allowances for your professional activity and you therefore work at a lower activity rate (e.g. before COVID, 100%, and 50% during confinement) – whether you were working from home or not — your holiday entitlement is not reduced in proportion to this lower activity rate.
You are entitled to your 100% salary during your days of vacation.
A man working from home. Photo credit: Pexels
2. WFH and overtime
If the workload requires more working hours than those provided in the contract, the employee shall be required to perform them in the limits of his capacity and good faith.
As a result, the rule regarding overtime does not change when WFH.
The employer and the employee are obliged to keep a record of the hours worked (working hours and overtime). Therefore, overtime alleged must be proven – even if it was worked from home.
3. WFH and sickness/accident
If an employee is prevented from working through no fault of his own for personal reasons, such as illness, or accident the employer must pay him the salary for a limited period of time (Art. 324a para. 1 CO).
Even if WFH, the employee will be required to inform his employer of his inability to work and to provide a medical certificate usually within three days of illness.
4. WFH and computer equipment, internet access, etc
The employer provides the worker with the work instruments and materials he/she needs, unless otherwise agreed. The employer also reimburses the employee for all costs incurred in the performance of the work (Art. 327 and 327aCO).
The employer is therefore obliged to provide you with a computer, a printer, or any other IT tool necessary for the WFH.
As regards the costs generated by the professional activity carried out from home, such as WIFI, electricity, heating, a contribution to the rent for the room occupied during your WFH, these are normally borne by the employee because they are due regardless of whether or not he/she WFH.
In a recent decision of the Swiss Federal Court, it was decided that the employer had to contribute to a part of the employee’s rent if he/she had no office space to provide to the employee (TF 4A_533/2018).
5. WFH and cross-border work
A cross-border commuter is a person who works in a country neighbouring the one in which he or she resides (“Commuter”).
As Commuter, the employee contributes to the social security system of the country in which he or she works. With the COVID-19 pandemic and the closing of borders in the Schengen area, many Commuters were prevented from going to their place of work.
As a result, they have had to WFH.
The European regulation on social security coverage was suspended during the pandemic. This meant that even through the Commuter was working from his country of residence, no social security was due in this country.
However, from January 1st 2021, the European regulation will be applicable again and European Commuters will not be permitted to work 25% or more of their working time in their country of residence, otherwise the employer will become subject to the payment of the country of residence social security contributions.