Switzerland Update: Fifty shades of work – When masks are mandatory in the workplace

The Covid-19 situation in Switzerland has been coming to a head (again) for weeks. In response, two weeks ago the Swiss Federal Council renewed its recommendation to allow employees to work from home whenever possible. But employers are not (yet) obliged to have their employees to work at home (if possible at all). 

However, employers are obliged to ensure that the health of employees is protected at their workplace and to ensure that the recommendations of the Federal Office of Public Health (FOPH) regarding hygiene and distance are implemented. Against this background, various companies or even individual cantons had already introduced obligatory wearing of protective masks in the workplace. On Wednesday (28 October 2020), the Federal Council decreed that masks must now be worn in the workplace throughout Switzerland (see Art. 10 of the Covid-19 Ordinance Special Situation). 

The following explains what this obligation and any failure to comply with it means for both employers and employees.

Scope and implementation of the mask obligation in the workplace

According to the measures announced by the Federal Council on Wednesday, masks must be worn in the workplace, unless the distance between personal workplaces can be maintained (e.g. individual offices), or if safety reasons or the nature of the activity prevent it. This measure applies from Thursday, 29 October 2020.

Accordingly, employers must immediately ensure that this obligation to wear masks in the workplace is implemented. Although most employees are likely already aware of this new measure, the employer’s first step is to inform the employees of the mask obligation and its implementation. In particular, the employer must define and explain the scope of the obligation to wear masks, the handling of protective masks and the sanctions in the event of a breach of the obligation to wear masks or for the incorrect use of masks.

Although the obligation to wear a mask in the workplace has now been ordered by the Federal Council (and not by the employer), the employer must provide the protective masks. It is the employer who is responsible for ensuring the health protection of employees in the workplace. Accordingly, the employer must also ensure that sufficient masks (easily accessible/visible) are available and that it is possible to change the protective masks regularly. Only if the masks are worn and used correctly will they provide the desired health protection and help to contain the spread of the virus.

Sanctions for disregarding the mask obligation

If an employee violates the obligation to (correctly) wear a protective mask, the employer can take (appropriate) sanctions under employment law based on the employer’s right to issue instructions. In this case, the employer is generally entitled to issue a warning or, under certain circumstances, a termination with notice (if desired). A termination for cause, on the other hand, would only be justified in case of repeated refusal (and after a warning). 

However, employees – but also the employer – are not threatened with any sanctions (fines) under the Covid 19 Ordinance Special Situation in the event of violation of the obligation to wear a mask at work.

Exceptions from the mask obligation

If an employee cannot wear a protective mask for health reasons, the employer can still not oblige him to do so; the Federal Council’s new measures have not changed this. However, the employer may require the employee to present a corresponding medical certificate. If the mask cannot be worn by the employee concerned for proven health reasons, alternative protective measures must be taken. If possible, the employee should be assigned to home office.

Conduct in the event of symptoms of illness or contact with a person suffering from Covid-19 

Irrespective of the obligation to wear a mask, employees with symptoms or who have been in close contact with a person suffering from Covid-19 must stay at home and report this immediately to their employer. Failure to do so may also entitle the employer to sanctions under Swiss employment law. This applies in particular in cases where the employee has had proven close contact with an infected person, or even themselves is proven to be infected with Covid-19. In the latter case, it is in our view and under certain circumstances even possible to terminate an employee for cause and without prior warning.

By Marc Ph. Prinz & Jeannine Simone Dehmelt, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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