Employment and the pandemic
Like in many other countries, the COVID-19 pandemic has prompted companies in Switzerland to allow employees to work from home and, according to Sarah Keller, an employment lawyer and Senior Associate with CMS Switzerland, "it is very likely that this situation will continue after the pandemic is over", thus posing risks as well as offering advantages that need to be assessed from an employment law perspective.
To assess these risks, Swiss employers need to understand the legal basis and implications of home office and mobile working. While some countries in Europe legally regulate various forms of remote work (e.g. teleworking or mobile working, remote work, etc.), this is not the case in Switzerland, as employment lawyer and CMS Partner Christian Gersbach explains.
Home office working vs mobile working
Home office working in Switzerland generally means that employees perform their workplace duties at their residence. Mobile working, however, means that an employee can choose a working location outside of the company's headquarters or main offices. In practice, Gersbach says, mobile workers usually conduct business from a combination of locations that include their homes as well as various mobile offices (e.g., shared office spaces, etc.).
Swiss law does not specifically regulate home office and mobile working, and the few court decisions issued on this subject have not made the legal situation any clearer. Hence, as CMS's Gersbach states, all crucial questions surrounding home office and mobile working must, for the time being, be answered on the basis of the fundamental principles of Swiss employment law. Generally speaking, the same rules that apply to home office arrangements also pertain to mobile working.
Implementing a home office arrangement
"As a rule", CMS's Keller explains, "an employer cannot unilaterally request that an employee work from home", and generic contractual regulations covering staff mobility (i.e. a general relocation clause in an employment contract) do not apply.
Swiss employment law, says Keller, does recognise exceptional circumstances such as the current pandemic or a less serious situation in which the office space is closed for a few days (e.g., due to construction works). In these cases, the employer has a "limited ability" to request employees to work from home. Similarly, employees have a limited right to unilaterally opt to work from home (e.g., if they have valid reasons to consider the office space as unsafe).
Hence, for a home office arrangement to work properly, the decision must be taken consensually by the employer and the employee, which means that it should be based on a contractual agreement.
Employer's obligations for home office arrangements
If a home office arrangement becomes necessary – as it has during the COVID-19 pandemic – or is agreed upon, the following question arises: what are the employer's duties in terms of paying for expenses such as utilities, equipment, etc., or other costs such as for rent and heating?
According to CMS's Gersbach, "this is an issue that has to be answered on the basis of the general principles of Swiss employment law".
Swiss employment law distinguishes between the costs for tools and material on the one hand (Art. 327 of the Swiss Code of Obligations, CO) and the expenses necessarily incurred in the performance of the employee's contractual duties on the other hand (Art. 327a CO). Depending on the classification of the respective home office costs, there are different legal consequences and different possibilities for the parties to agree on in an addendum to their employment agreement when it comes to the assumption of the respective costs.
CMS' Keller explains that "according to Art. 327 CO, the employer has to equip its employees with the tools and materials necessary for them to do their work". If the parties deviate from this rule by mutual consent, and an employee provides the respective materials, the employee is to be appropriately compensated for this, unless otherwise agreed upon by the parties. In the context of an office job, the term 'tools' includes, inter alia, a computer including a screen (e.g., a laptop or tablet) and further peripheral devices such as a keyboard, a mouse, or a printer, as well as office furnishings (e.g., desk, office chair). According to Keller, paper, printer cartridges, or similar supplies would usually fall under the term "materials".
As a consequence, employees, according to Gersbach, may contractually agree to provide or replace some or all of the work equipment or materials themselves without receiving specific compensation. He stresses that the employee's consent (e.g. in the employment contract or in an amendment to the employment contract) is a condition for such setup.
Keller explains that "the situation is different regarding expenses necessarily incurred in the performance of the employee's contractual duties". The employer must reimburse the employee for all expenses necessarily incurred in the performance of the work (Art. 327a CO). "In contrast to the reimbursement of costs for tools and materials (Art. 327 CO), the reimbursement of expenses, according to Art. 327a CO, is mandatory and cannot be contractually modified", states Keller.
When working from home, such expenses include, in particular, the costs of electricity, internet and heating. In addition, according to a recent decision of the Swiss Federal Supreme Court, the employer must also reimburse the employee for rental expenses for using a room for home office work.
According to Gersbach, on the question of whether the employer has to bear these expenses or not, "it is decisive whether the employer provides the employee with a suitable work place or if the employee's only option is to work from home." The duty of the employer to reimburse the employee for these expenses requires that the costs are actually necessary for the professional activity. If the home office work is voluntary, and a suitable work place would be available at the employer's premises without time restrictions, the employee is not entitled to a reimbursement of the expenses mentioned.
On the other hand, the situation is different where the employer does not provide the employee with a suitable workplace. In this case, the employer is obliged to contribute to the room costs (rent, electricity and heating) and other expenses (e.g., costs for internet connection). According to case law of the Federal Supreme Court, the amount of such a contribution to costs depends on the extent of the business use (e.g., the employer has to bear half of the internet costs if the connection is used approximately half for business and half for private purposes). However, unfortunately, Swiss case law provides very little guidance for the specific determination of such expense contributions.
CMS' Keller concludes that "in order to have clear rules and regulations for a home office setup and the respective cost contributions, it is strongly recommended to regulate the rights and duties of both parties in an amendment to the employment agreement."
Health and safety
Although some employer obligations are vague, this does not apply to health and safety. "As a general rule," CMS's Keller explained, "even when employees are working from home, the employer is obliged to protect the health of its employees."
Even though the obligation is clear, implementation remains a challenge. In short, how can employers control the health and safety of someone else's home? "As direct control in the home office is, in practice, not possible, we recommend that employers inform their employees of the applicable key provisions so that the employees can apply these rules", says Keller.
But how does a company regulate the health and safety of mobile working performed from several locations? According to Gersbach, companies should understand that having mobile workers perform their duties at multiple work sites does not change their obligation to ensure a healthy and safe workplace. Hence, he recommends that employers in this situation consider limiting the workspaces of their mobile workers to only those that have been confirmed to meet specifications.
Furthermore, regarding working hours, the regulations on working and rest times must be observed also when working from home. (This concerns, for example, the prohibition of night and Sunday work). Finally, also in a home office setup, the employee must duly record the hours worked in detail. Again, Keller recommends providing the employees with a summary of the respective key information and regulations.
Other effects of home office or mobile working
Other considerations for employers in connection with home office or mobile working include:
Social Security: If a Swiss company employs a person residing in another EU or EFTA country, and if this employee spends 25% or more of his working time at home (i.e. in his country of residence), the employee is subject to the social regime of that country for the entire employment relationship. This tenet, according to CMS's Gersbach, could have financial implications for the company if a foreign country - such as France where a large number of cross-border commuters into Switzerland reside - requires higher social contributions than Switzerland.
Usually, a company can protect itself in this situation by including a clause in the home office contract providing that employees cannot work from home for more than 25% of their total working time. However, during the current pandemic, this 25% rule has sometimes been eased.
Taxes: If an employee receives money from a company as reimbursement for home office or mobile working expenses (e.g., internet, electricity, rent), this is not taxable unless the reimbursement constitutes a "hidden salary component" for the employee (i.e. if it clearly exceeds the respective cost share).
Data protection: It is an employee's duty to ensure that company information is secure. "As a general rule, employees must ensure that business secrets are protected and that family members or other third parties do not have access to company data", said CMS's Gersbach. Such risk might be higher in case of remote working. For its part, the company should create a clear data-protection policy for home office or remote workers and ensure that remote employees understand these provisions.
Place of Jurisdiction: Based on mandatory law, Swiss employees have a place of jurisdiction at the location where they usually perform their contractual duties. Hence, it should be noted that substantial home office working may center this place of jurisdiction in the home.
When employees increasingly work from home, the need increases for a transition from traditional paper files to fully digital operations. In Switzerland, however, such a complete transition is prevented by the restrictive regulations regarding the written form and the electronic signature.
Legal reservations in connection with electronically signed employment law documents arise whenever (i) the law requires that a particular legal transaction has to be done in writing (e.g. in case of a waiver of compensation for overtime, the agreement of a non-competition undertaking, or a change in the statutory notice periods), or (ii) if the parties (as usual) agree on the requirement of written form for amendments to the employment contract or termination.
Under Swiss law, written form requires a handwritten signature (art. 14 CO). According to art. 14 para. 2bis CO, a qualified electronic signature based on a qualified certificate from a recognised certification service provider is deemed equivalent to a handwritten signature. According to CMS's Keller, only four providers have so far obtained such recognition. A "simple" electronic signature (e.g. via AdobeSign) does not meet the requirement of the written form according to the CO.
e-Signature weaknesses: terminations
According to CMS's Gersbach, an additional difficulty arises in case of terminations, as a termination only becomes effective once it has been received by the terminated party. The burden of proof for the termination lies with the terminating party. In Switzerland, a termination notice is handed over in a personal meeting or delivered by registered mail. In contrast, an electronically signed termination notice would probably have to be delivered by e-mail. However, this delivery method would not provide sufficient proof that the employee had received the notice in time.
The strict requirements of Swiss law on written form as well as on electronic signatures have so far prevented this solution from being widely implemented in employment-related topics. According to Keller, the use of such signatures is, therefore, still rare.
"We do hope that a more practical solution will be implemented in Switzerland sooner rather than later," states Gersbach and stresses that more practical regulations in this and other areas could lay the foundation for wider use of home office arrangements in Switzerland's post-pandemic future.