The coronavirus is spreading rapidly. Besides China, human infection has been confirmed in almost 30 countries. The virus is transmitted by droplet infection, whereby secreted viruses can survive for several hours on hands or places such as door handles. The WHO is already assessing the spread as an international health emergency. Although cases of infections have not yet been detected in Switzerland, they are possible in the next few days according to the Federal Office of Public Health (FOPH). Currently, the risk of infection is mainly associated with travel to affected areas or close contact with people carrying the virus. Since contact at a distance of less than 2 metres and for 15 minutes is considered close, it is conceivable that in the near future working places could mutate into potential sources of infection. Both workers and employers should therefore recall their rights and obligations with regard to a possible pandemic.
Questions from employer’s side: what may I do, what must I do?
In principle, employers must take all necessary and appropriate measures to protect the health of their workers. They are legally obliged to do so. In order to comply with this duty of care, they have - depending on the situation - a very extensive right to give instructions to their employees. From an employer's point of view, one must first become aware of a rapidly changing situation. The current situation must be closely monitored internationally and throughout Switzerland and a decision must be made on an ongoing basis as to whether instructions are appropriate or whether further measures are be ordered. First of all, instructions concerning hygiene in the workplace should be considered (washing hands with soap, mouth, nose and eyes, if possible, do not touch them, disinfect the workplace, etc.). Employees can be reminded of these obligations several times a day by posting notices at their workplace or by sending out appropriate e-mails. If illnesses are actually diagnosed in Switzerland, employees should be explicitly instructed to stay away from work even if there is a suspicion of infection. The employer should also consider further instructions at an early stage, e.g. home office, video conferencing and telephone calls instead of personal meetings, no shaking hands at the place of work.
When issuing instructions, employers must take particular care not to order any measures that would violate the personality of their employees. For example, instructions that interfere with employees' right to self-determination with regard to their health are not proportionate. This would include compulsory vaccination. However, should the pandemic occur (and a vaccine for the virus be found), even compulsory vaccination for certain pro-fessional groups (e.g. doctors, nurses) could prove to be proportionate due to the threat of infection. Employers are then authorised to collect data on infectious diseases. The em-ployees have a duty of notification and information in this respect. They must therefore inform their employer, for example, whether they have spent or are planning to spend holi-days in risk countries, but also inform him about contact with people who are ill. Employ-ees must also be made aware of these obligations.
Finally, employers must be made aware that a breach of the duty of care described above can have far-reaching consequences and may, among other things, trigger a liability for damages to their employees.
Questions on employee’s part
The counterpart to the duty of care is the employee's duty of loyalty to his employer. As an employee, he must follow proportionate instructions from his employer. Specific questions may arise in individual cases already at this stage. For example, are employees allowed to refuse a business trip to an affected area (places where the virus has been confirmed in humans)? In order to answer this question, a balancing of interests must be carried out. The employer's interest in the undisturbed continuation of business, including business trips, is primarily counterbalanced by the health interests of the employee concerned. From the employees' point of view, there is definitely an interest in avoiding certain places (e.g. airports in the Asian region), as there is a greater risk of infection compared to Swit-zerland. However, as long as the FDFA does not impose travel restrictions for the destina-tion of the journey, there is probably no sufficient reason to refuse short trips to these places. If the employee is staying abroad for a long period of time, the rapidly changing situation and spread of the virus means that the employer must nevertheless carefully consider whether a trip is really indispensable.
If employees receive instructions from their employers to stay at home or if they contract the virus, their absences are excused and they are entitled to payment of wages in ac-cordance with the general legal and contractual provisions. However, as long as neither the employer nor the authorities order employees to stay away from work, employees are advised not to stay at home for fear of infection. In this case their absences would be un-excused and could result in disciplinary action. Finally, in the event of a pandemic, a standstill of public transport would be conceivable. If employees are therefore no longer able to perform their work, their absences are excused, but they would not be entitled to continued payment of wages.