On 18 September 2020, the Federal Council voted to amend Ordinance 1 to the Employment Act (EmpO 1), with the changes entering into effect on 1 November 2020. These are designed to remove uncertainties over the application of the provisions on working and rest hours.
Ambiguities in the wording of EmpO 1 have repeatedly produced different interpretations in practice. The latest amendments are intended to add greater clarity in the practical application of the provisions in question. They include defining the counting of outward and return travel time for international business trips, the precise working week for the calculation of the maximum hours worked per week, and the rules on medical fitness examinations in the event of continuous night work.
International business trips
The existing Article 13 para. 1 EmpO 1 states that «the journey to and from work» does not count as working time. This has now been made more explicit, clarifying that the relevant point is the time taken to complete the journey, not the journey itself. A new para. 3bis stipulates that when travelling abroad on business trips, the Swiss parts of the outward and return travel time count as working hours where they exceed the normal commuting time. It is irrelevant what means of transport the employee uses or what professional activity they undertake. As the Employment Act only applies in Swiss territory, travelling time in the country of destination must be governed by contract (subject to the mandatory provisions of the law of that country).
In contrast to the rules on working at night, on Sundays or on public holidays, no authorization is needed for the days or hours spent on such outward and return travel. However, the provisions on extra pay and time surcharges still apply, along with those on rest hours. A break of eleven hours is required, and the employer must grant this to the employee immediately after their return journey to their home.
Working week and combined continuous service
The existing provisions were ambiguous in that they defined the start and end of the week by day only, and not by hour. For companies operating multiple shifts, it was unclear which week hours worked from Sunday into Monday should be assigned to.
Article 16 para. 1 EmpO 1 now expressly states that the working week begins at 00:00 on Monday and ends at 24:00 on Sunday. The hours worked between these times constitute weekly working hours, irrespective of shift patterns.
Previously, under the rules on combined continuous service, weekend shifts between Thursday evening and Monday morning (four nights) were permitted, provided that the employee did not work for more than ten hours out of twelve in any shift. Under the revised rules, the employee must still not work more than ten hours in a twelve-hour period, but also, they may work a maximum of three nights (Article 39, para. 2(b) EmpO 1).
New provisions governing work on Sundays and public holidays
With the amendment of EmpO 1, the Federal Council has brought in explicit rules on extra pay and substitute rest times for work performed on Sundays or public holidays. To date, the definitions of temporary and continuous Sunday work have been based on the thresholds for authority to grant approval under Article 40 para. 3 and 4 EmpO 1, with up to six deployments per year counting as temporary Sunday working. In such cases, the employer must pay an extra 50% of salary in addition to the substitute rest time. If it only emerges during a calendar year that, contrary to expectations, an employee needs to work on more than six Sundays, the salary supplement for the first six Sundays remains payable.
Mandatory medical examination and advice
The existing ordinance provided for a medical investigation for a young person working at night between 01:00 and 06:00 hours on a continuous or regular basis (i. e. more than ten nights per year; see Article 12 para. 4 EmpO 5). This time restriction on night work is now removed, in accordance with Article 12 of the Youth Employment Protection Ordinance. A medical examination and advice are now mandatory for all young people working at night on a continuous or regular basis.
Examinations must normally take place every two years. However, this can now be combined with a medical-fitness-to-drive examination, where the provider is able to assess aspects relevant for suitability for night working. In such cases, the time until the next examination may be extended by up to one year. The legislators are seeking here to harmonise the different legal time periods. However, combining the two examinations need not necessarily lead to identical results.
The existing legislation provides that doctors must notify employers and employees as well as the State Secretariat for Economic Affairs (SECO) about the suitability/unsuitability result. If suitability is conditional, SECO may, in consultation with the doctor, consent to full or partial night working, provided that the necessary health protection measures are followed. However, this assessment is difficult to carry out remotely, and yet no one has therefore made use of it. Doctors are no longer required to notify the result, as SECO has neither sufficient resources to administer this possibility nor the ability to effectively check whether all companies have carried out the necessary medical examinations.
Greater clarity and precision
Together, the amendments to EmpO 1 bring greater clarity and consistency to the affected areas. With regard to informing the authorities about suitability for night work, they bring the law into line with everyday realities. This will aid implementation in practice. Employers will need to check to what extent they need to prepare for the upcoming changes. The amendments could necessitate changes to everyday business, time recording, employment contracts or staff regulations.