18 January 2022

Coronavirus – Use of the Certificate in the Workplace

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  • Legal
  • Employment / Immigration

Since September 13, 2021, employers may request their employees to present a covid certificate as part of their duty of care, if this serves to determine appropriate protective measures or the implementation of a testing concept.

  • Martina Aepli

    Legal Partner

  • Michèle Stutz

    Legal Partner

Post no longer relevant due to cancellation of COVID measures, but still relevant for issues related to the past.

As part of its duty of care, the employer must take all reasonable measures to protect the health of its employees in this pandemic. For example, since 13 September 2021, employers may request their employees to present a covid certificate as part of their duty of care, if this serves to determine appropriate protective measures or the implementation of the test concept. This was decided by the Federal Council at its meeting on 8 September 2021 and documented in the relevant Covid-19 Ordinance. This possibility still exists.

With the current amendment of the Covid-19 Ordinance of 6 December 2021 and 20 December 2021, the question now is whether the introduction of a so-called 2-G or 2-G+ rule at the workplace would be possible. At the moment, there is no legal basis for a comprehensive introduction at the workplace. The introduction of a 2-G or 2-G+ rule at the workplace would require a change in the law and could not be implemented by ordinance. The introduction of a 2-G or 2-G+ rule in the workplace is only justified in exceptional cases.

According to the Federal Office of Public Health, employers must assess whether appropriate protective measures are required on a case-by-case basis, taking into account a number of aspects. For example, the spatial conditions (i.e., whether work is carried out in individual offices or large workshops), the impact on vulnerable persons, teamwork or customer contact are decisive for the assessment. If the employer wants to introduce the certificate, the employees or the employee representatives must be consulted in advance. This can be done in a meeting or by e-mail, and the employees must be given a few days to provide feedback. The final decision remains with the employer. In addition, the employer must bear the costs of testing if it does not already offer repetitive testing financed by the Confederation. Please note, however, that the repetitive testing does not provide the employees with a certificate. For reasons of data protection and in the interests of proportionality, the "certificate light" should be used wherever possible, so that it is not clear whether an employee has been tested, recovered or vaccinated.

Q: May a fitness center require his employed fitness instructor to show a covid certificate?

A: Since there is close contact with clients and staff in the gym, especially because of the group courses, and because there is also a certificate requirement for clients, the fitness instructor may be required to present a Covid certificate. If he is not recovered or vaccinated and does not wish to be vaccinated, he must be tested every 1-3 days (depending on the type of test - rapid antigen tests are sufficient for 24 hours, PCR tests for 72 hours). The employer has to pay for the tests, unless he has introduced federally funded repetitive testing in his company (whereas the latter does not entitle the employees to receive a certificate). There is no legal basis for the introduction of a strict 2-G or 2-G+ rule.

Q: Can the employer of a furniture shop demand that salespersons without a corona certificate are no longer allowed to advise customers but have to work in the warehouse?

A: Because customers do not have to show a covid certificate in furniture shops, it would be difficult to justify stricter rules for the staff. Masks have to be worn in furniture shops anyway and the distance rules have to be respected. However, in sectors where customers are required to have a certificate, it is quite conceivable that people without a covid certificate will not be allowed to have direct contact with customers.

Q: Is the head of an architecture firm allowed to award prestigious projects only to employees with a certificate?

A: An employer may only require a certificate if it is for the protection of staff or clients and not for other purposes. It is therefore not permissible to link the awarding of a project to vaccination or testing status without a factual reason related to the protection concept in place at the employer.

Q: Can a company's in-house canteen require employees without covid certification to sit in a different area than employees with covid certification?

A: There is nothing that speaks against such a measure. One area would then be for employees with a certificate, where lower distance rules may apply, and the other area would then be with mandatory masks (unless you are sitting) and the usual distance rules. Also, as an alternative, the employer may generally require their visitors to present a covid certificate, consistent with public restaurants.

Q: What does an employer have to consider if he wants to introduce a covid certificate requirement as part of his protection concept?
A:
• If an employer wants to use the covid certificate for its occupational protection concept, he must first consult the employees concerned or their representatives. "Consultation" does not mean that the employer may only use the covid certificate with the consent of the employees. However, the employer must consult the employees, for example by e-mail or in a meeting, and give them sufficient time (2-3 working days) to comment on the proposed protection plan.

• If an employer implements the covid certificate requirement, he must then offer regular (e.g., weekly) tests for unvaccinated employees, which are financed by the federal government. If he does not offer repetitive tests, the employer has to pay for the test costs itself. If he provides for differentiated measures (e.g. home office for persons without a covid certificate), no testing costs have to be borne.

• It is important to note that employers must specify in writing which measures apply to employees with and without a covid certificate.

• It should also be noted that, for data protection reasons, the data received may not be used elsewhere by the employer and the low-data "certificate light" should be used whenever possible. This is only really practicable for individual occasions, as the certificate light does not show whether an employee has been tested, recovered or vaccinated, so that even vaccinated employees would have to present the certificate to the employer on an ongoing basis.

Q: Can an employer allow employees with a certificate to stop wearing masks but require the others to continue wearing it?

A: Currently, there is a general obligation to wear a mask. As there is no legal basis for the introduction of a 2-G or 2-G+ rule, it is not possible to even partially lift the mask obligation at the workplace.

Q: Is an employer allowed to dismiss his employee because the latter resists ordered protective measures?

A: It could be that such a dismissal is abusive, which can only be determined afterwards by a court; this means that the dismissal would remain valid, but the person concerned would possibly have a chance to seek compensation of up to 6 months' wages in court. For this reason, it is recommended that pragmatic solutions be sought before dismissal.

Q: Would it currently be permissible to employ only vaccinated staff?

A: Depending on the circumstances at the workplace (space conditions, customer contact, proximity to particularly vulnerable patients/persons, etc.), this currently seems to us to be a viable option for an employer under private law.

Our team of employment law experts will be happy to advise you on all questions relating to compulsory certificates in the office. We look forward to hearing from you.
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