Legal rollercoaster

The coronavirus completely upended the world of work. Not long after the outbreak of the pandemic, the Federal Council recognised the need to take action, passing its COVID-19 Ordinance 2 on 13 March 2020. This was primarily designed to enable especially employees at high risk to fulfil their work obligations from home. This ordinance was continually adapted over the course of 2020 and eventually replaced by the COVID-19 Special Situation Ordinance on 22 June 2020. Based on this, working from home became mandatory from 18 January 2021 wherever feasible given the type of work undertaken and whether the associated cost and effort were reasonable. 

This proved extremely challenging for companies in Switzerland. What was previously unthinkable for many due to the corporate culture became an obligatory part of everyday working life. Thanks to the advanced level of digitisation, companies found solutions that they could implement from a technical perspective and in line with the legal requirements.

Authorised vs. unauthorised

The home working obligation had more or less far-reaching implications depending on whether or not a company was subject to the Financial Market Supervisory Authority (FINMA). Institutions that are authorised and supervised by FINMA – banks, insurance companies, asset managers and the like – must comply with very strict requirements with regard to protecting and securing customer data. Almost overnight, they had to ensure that these requirements were met in the decentralised environment of their employees’ home offices. The challenges facing the other companies were mainly due to the task itself rather than the regulatory requirements. For instance, they had to consider which tasks production employees could undertake from home.

New legal situation, old issues 

The COVID-19 Special Situation Ordinance has also been amended numerous times since its introduction. On 23 June 2021, the Federal Council changed the remote working obligation into a recommendation and eased certain restrictions. Nevertheless, employers are still obliged to implement possible measures in accordance with the STOP principle: Substitution, Technical measures, Organisational measures and Personal protective equipment. This includes the choice of whether or not to work from home, separating teams, regular ventilation and the wearing of face masks. The home working concept has remained in place – along with legal uncertainties for which neither the experiences of recent months nor explanatory legal articles or specifications provide clear answers. As a result, employers who continue to offer home working as a working model must still clarify the following points: 

a) Materials and expenditure

Employees who want to work from home need a minimum amount of infrastructure: a desk, chair, computer and printer. Added to this are the costs of Internet access, phone calls, electricity and heating. Rental costs are another issue, since their private home and infrastructure are being used to conduct work. The specifications of the Federal Council’s COVID-19 Special Situation Ordinance of January 2021 expressly stipulated that employees should receive no compensation for expenditure relating to work conducted from a home office as a result of the ongoing pandemic (cf. ‘Costs of working from home during the pandemic’). The lifting of the home working obligation has brought a certain amount of legal uncertainty regarding the reimbursement of costs. The doctrine assumes that employees who voluntarily work at home are not required to be reimbursed for any expenses they incur. 

b) Working hours and checks

There is further uncertainty regarding who may, can and must do what, especially with regard to checking on employees working from home. How can line managers verify who is working from home, when and for how long? And where should they draw the line for such checks? After all, by its very nature, working from home involves a certain amount of blurring of private and professional life. 

Swiss employment law obliges companies to record working hours in detail. As part of this, there must be clarity about the length, start and end of the daily and weekly working hours, including compensatory work and overtime and any breaks lasting half an hour or more. Employers must therefore ensure that employees who work from home record their working hours correctly, work only for as long as agreed and adhere to break times. The extent to which they may encroach upon their employees’ home lives is difficult to decide and to assess on a case-by-case basis.

c) Health and safety

The remote working obligation was imposed partly for the safety of employees. However, the occupational safety of workplace designs does not relate solely to the risks associated with a pandemic. Aspects like ergonomics and accident prevention must also be taken into consideration. It is easier for a company to set up a single location with standardised workstations than to adapt the individual infrastructure of every single employee’s repurposed children’s bedroom to the provisions of the occupational health and safety requirements. 

d) Data protection

Working from home or whilst travelling automatically raises data protection concerns. Here it is important to define what measures employers and employees must take to guarantee that customer data remains protected and secure. For example, how do you control access to a bedroom that’s been converted into a home office? And how can it be controlled in shared accommodation in which several families live in the same household? The Swiss Federal Act on Data Protection (FADP) was completely revised at the end of September 2020, but it does not include specific provisions on home working. Both the companies and their employees remain responsible for ensuring compliance with data protection obligations – regardless of which working models are applied.

Internationalisation brings greater complexity

The situation is even more complex for international assignments and cross-border commuters. What are an employer’s responsibilities in terms of employment, fiscal and social security legislation if an employee’s home office is located abroad? For instance, it makes a difference whether the person is a CEO or a regular employee. In set-ups like these, it’s important to consider aspects like income and corporate taxes (permanent establishment risk) on the one hand, or rules determining which state is responsible for social insurance on the other. Depending on the scope of the work performed abroad and/or the nationality of the employee, they may be subject to the social insurance system abroad. It’s also important to consider the application of the territorial principle, which states that employment-related requirements like weekly working hours, holiday entitlements and sick pay are subject to the laws of the country in which the home office is situated. In these cases, employers are well advised to gather the necessary specialist know-how or draw on support from a professional international consultancy network.

A business needs people 

The pandemic has made it easier to decentralise work. Nevertheless, personal collaboration and face-to-face communication remain crucial. They determine how corporate values are implemented on the ground and are built into the corporate culture. Ordinary employees and managers alike have been shown to have closer ties with their company when they are on site. They are better able to develop loyalty and team spirit if they can directly experience what they, their team and the company as a whole represent. Unfortunately, conversations held via digital communication platforms lack spontaneity and informal dynamism. For this reason, companies must interact with their employees and teams over and above the monthly online meetings. If not, they won’t find out what worries the people in their company – or what keeps them there.

Creation of clarity recommended

From a technical perspective, a remote workplace may be easy to set up in many locations nowadays. However, the legal aspects are more challenging. That’s because the term ‘home office’ isn’t even mentioned in the Swiss Code of Obligations (CO), which is why there are no explicit regulations relating to it. To create clarity regarding who must or may do what, we recommend the following:

• Define the entitlement to working from home in employment contracts.
• Lay down remote working regulations (see separate box) to determine how this working model should be understood and implemented. 
• Hold workshops or internal training on how to implement the home working regulations and answer individual questions arising out of practical experience.
• Regularly and openly communicate with staff working from home so that line and HR managers are constantly aware of employees’ physical and mental wellbeing.

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