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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Peztalozzi Attorneys at Law Ltd

    As at March 30, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Pestalozzi Attorneys at Law Ltd and is published with their kind permission. With thanks to:

    Pestalozzi Attorneys at Law Ltd  |  Petra Spring  |  Petra.Spring@pestalozzilaw.com  |  www.pestalozzilaw.com/en/

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Request that all employees make a personal declaration regarding their vulnerability. In particular, employees need to provide a personal statement covering whether they suffer from high blood pressure, diabetes, cardiovascular diseases, chronic respiratory diseases, diseases and therapies that weaken the immune system, cancer or whether they have another illness that they think qualifies them as particularly vulnerable. Treat such declaration as strictly confidential and ask for a medical certificate if in doubt as to whether a declaration is true.
    • Instruct highly vulnerable employees to perform their duties under the employment agreement from home. If this is not possible, such employees must return to their workplace, provided the employer can guarantee it will comply with all the authorities’ recommendations of regarding hygiene and social distancing. If the employer is not able to guarantee such compliance the employer needs to grant leave to highly vulnerable employees with continued payment of wages.
    • Undertake a risk analysis of other high-risk groups of employees and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with other health issues or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g., increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact?  If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the particularly vulnerable employees identified based on their personal declaration and the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus.  What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus.  For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update 

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

    Country Overview

    As at March 30, 2020

    1.  What are an employer’s main legal obligations?

    In general, employers in Switzerland are legally obliged to ensure a safe work environment (occupational safety) and to protect and enhance the employees’ personal integrity as well as their physical and mental health. Employers must therefore take all measures which are appropriate to the conditions of the business, i.e., which are reasonable for the business in view of the technical and economic conditions.

    In view of the outbreak and continuous spread of the coronavirus, employers in Switzerland must also ensure that the requirements imposed by the Federal Council and the Federal Office of Public Health (“FOPH“) are observed and implemented during work. Such requirements include:

    • Protecting particularly vulnerable employees (i.e., those with high blood pressure, diabetes, cardiovascular diseases, chronic respiratory diseases, diseases and therapies that weaken the immune system, cancer) or employees with other illnesses that are likely to qualify as particularly vulnerable, by allowing them to work from home. If working from home is not possible such employees must return to their workplace, provided the employer can guarantee it will comply with all the authorities’ recommendations regarding hygiene and social distancing. If the employer is not able to guarantee such compliance, the employer needs to grant leave to highly vulnerable employees with continued payment of wages.
    • Instructing all other employees to work from home if possible;
    • Providing clear instructions on how to behave in the event of a (suspected) infection (e.g., stay away from the office, remote work (if possible), provide medical information and corresponding updates);
    • Implementing measures to ensure social distancing at work such as introducing staggered working and break times, placing partition walls between desks in open-space offices and arranging the workplace in such a way that employees can maintain sufficient distance from each other (i.e., at least 2 metres), etc.;
    • Providing information and regular updates on the recommended conduct and issuing appropriate instructions (i.e., washing hands regularly, no handshake, etc.) to comply with the hygiene rules recommended by the health authorities and make the aids required to comply with such recommendations/instructions, such as disinfectants, disposable towels, etc., available;
    • Regular cleaning and disinfection of heavily frequented places in the office (e.g., cafeteria, toilets and bathrooms, meeting rooms) as well as door knobs;
    • Instructing concerned employees who have travelled to affected areas or who have been in contact with persons who have travelled to such areas not to come to the office and to work remotely (if possible) for up to 14 days; and
    • Instructing employees not to travel to high-risk areas.

    An employer may also wish to set up a pandemic plan.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation in Switzerland for employers to set up a pandemic plan. However, in order for the employer to ensure the safety, personal integrity as well as physical and mental health of their employees and to implement the measures required by the Swiss authorities in relation to COVID-19 (see question 1 above), the FOPH recommends that employers implement such a pandemic plan dealing with workplace health and safety issues associated with COVID-19.

    3.  What should a workplace COVID-19 response plan cover?

    FOPH, together with the federal commission responsible for preparing for and combating pandemics (“EKP“) and the Swiss State Secretariat for Economic Affairs (“SECO“) have issued a preparedness handbook describing the measures to be taken to protect employees from infection and keep a business running in the event of a pandemic. The handbook also contains templates for individual planning or checklists.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Within the framework of the employer’s right to issue instructions, the employer may direct a single employee infected with COVID-19 or who shows symptoms to go home or stay at home in order to safeguard the general health and wellbeing of all other employees and/or customers. Depending on the circumstances, the employer may also instruct all employees to go home or stay home regardless of whether they are infected or show symptoms as a precautionary measure and without being order to do so by the authorities. In such cases, the employer is obliged to comply with its obligation under the employment agreement (i.e. continue to pay wages). The FOPH currently encourages employers to instruct all their employees to work from home if possible.

    5.  Can I direct an employee to see a doctor?

    Within the framework of the employer’s right to issue instructions and due to the special situation in relation to the outbreak and spread of COVID-19, the employer may direct a single employee infected with COVID-19 or who shows symptoms to see a doctor in order to safeguard the general health and wellbeing of all other employees and/or customers.

    6.  Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    The employer has to continue to pay wages and to provide other employment-related entitlements during a COVID-19 outbreak. This is especially true where the employee continues working. Swiss law applies the principle of “no work, no pay”. However, this principle is not absolute. If no work can be performed and the reason for this lies within the employer’s sphere of risk (i.e., delivery bottlenecks from suppliers preventing the employees from continuing work, storm-damaged offices, etc.), the salaries are still due. The same applies if the employee is prevented from working due to illness, accident or the like. In this case, the statutory obligation to continue to pay the salary under art. 324a of the Swiss Code of Obligations (“CO“) applies (i.e., continued salary payment for a certain period depending on the employee’s years of service). Therefore, in the absence of a statutory provision providing for a continued salary payment in special situations such as illness, it has to be assessed, on a case-by-case basis, whether the event which led to the prevention of work performance lies within the risk area of the employer (usual business risk) or the employee. The SECO is of the opinion that the effects of the coronavirus are usually not part of the usual business risk to be borne by the employer. Hence, it has to be assessed on a case-by-case basis in each individual case whether the employer has to continue to pay wages and to what extent.

    In relation to sick leave, there is no specific amount of sick leave that an employee is entitled to take under Swiss law. However, if an employee is prevented from work due to an accident, illness or similar, the employee needs to submit a doctor’s certificate to the employer stating the probable period of absence and extent of incapacity to work. Usually such certificate needs to be submitted from the third day of illness or according to the parties’ agreement. However, the Swiss Federal Council has now called on employers to take this special situation into account and to request the doctor’s certificates as from the fifth day of absence only. During an employee’s sick leave, the employer has to continue to pay the employee’s wages during a certain time period in accordance with art. 324a of the CO (i.e., at least three weeks in the first year of service – this period increases based on the employee’s length of service), provided the employment agreement has been in place for at least three months or entered into for more than three months.

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    Within the framework of the employer’s right to issue instructions and due to the special situation in relation to the outbreak and spread of COVID-19, the employer can quarantine certain staff to certain parts of an office. Whether the employer can also send them to a different office depends on the circumstances of each individual case. Basically, it needs to be assessed whether such relocation is reasonable for the employee taking into account all the circumstances of an individual case (i.e., including whether the employment agreements provide for a certain workplace or a provision which allows the employer to (temporarily) change the workplace, how far away the alternative workplace is from the employee’s traditional workplace, the employee’s family situation and the planned duration of such relocation). If such relocation is not deemed to be reasonable for the employee, the employer would have to change the employee’s workplace by issuing a termination for variation of contract. If a large number of employees are affected by such terminations for variation of contract and the legal thresholds for collective redundancy are reached, a mass dismissal procedure (including employee consultation and information of the local authorities) must also be carried out.

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Yes, in the event of a COVID-19 outbreak, in our view, it would be lawful and reasonable to ask employees to report if they suspect they are infected. However, it would go too far to ask employees to report a suspected infection of a colleague.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    No. If, despite appropriate protective measures taken by the employer, the employee remains away from work for fear of contagion, this constitutes an unfounded refusal to work. The employee’s entitlement to salary payments is forfeited. In addition, such conduct on the part of the employee may also result in disciplinary measures, including termination without notice.

    The same applies if the employee refuses to go on a business trip to a non-risk area. The employer’s right to issue instructions takes precedence here. On the other hand, the employee is entitled to refuse to go on an ordered business trip to a risk area and the salary has to be paid to the employee.

    Nevertheless, if the employer fails to take appropriate measures to protect the health of the employees and thus violates his duty of care towards the employees, the employees may, depending on the situation and after appropriate criticism and pre-warning, refuse to work and still must be paid their salary. This requires however, a clear breach of duty and continued inactivity on the part of the employer.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    Within the framework of the right to issue instructions (Art. 321d CO), employers may be permitted, depending on the type of business and the activities to be performed by the employees, to measure the temperature of employees before allowing them to enter the workplace. This measure is also likely to be covered by the employer’s duty of care toward the employees and thus the obligation to ensure the protection of life and health of all the employees. For customers, there is no legal basis for businesses to undertake screenings or temperature measurements. However, in special circumstances and depending on the type of business, such screenings may be permitted to ensure the safety of the employees as well as the quality of the manufactured products (e.g., in food production or similar).

    CONTACT: Peztalozzi Attorneys at Law Ltd  |  Petra Spring  |  Petra.Spring@pestalozzilaw.com  | www.pestalozzilaw.com/en/

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave.
    • Allow employees to work from home.
    • Explore application for short-time work or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Pestalozzi Attorneys at Law Ltd provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.