19 January 2022

Home office during the pandemic: recommendation or duty? Challenges?

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  • Legal
  • Employment / Immigration

After the home office obligation had been lifted for a short period of time, the Federal Council decided to reintroduce a home office obligation, due to the worsening of the epidemiological situation in November and December 2021. However, the home office requirement could likely be repealed as early as Feb. 3, 2022.

  • 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.

Questions and Answers regarding the most widespread word in professional life these days

After the home office obligation had been lifted last summer, the Federal Council decided due to the worsening of the epidemiological situation in November and December 2021, to reintroduce a home office obligation.

In many industries, home office was not very common before the outbreak of COVID-19, in others it is simply impossible. Many questions arise for almost all employers and employees when it comes to home office. We herewith try to answer the most important ones.

Q: Does an employer have to enable home office for all employees?

A: Since December 20, 2021, there is a general obligation to enable employees to work from home again. This applies insofar as it is possible due to the nature of the activity and feasible with reasonable effort. To this end, employers must take the appropriate organisational and technical measures.

Q: Can an employer oblige employees to work from home?

A: Often the employment contract provides for a clearly defined place of work. The employer cannot simply change the work location without the employee’s consent and thus cannot unilaterally impose on the employee to work from home. However, during the continuation of the special situation, employees are obliged again to comply with the instruction to work in home office due to the new ordinance of the Federal Council, if there are no special circumstances against it.

Q: What equipment must the employer provide to employees for home office?

A: The following general rule applies: The employer is obliged to provide the employee with the equipment and material necessary for working from home, provided that working remote was forced upon the employee and unless agreed otherwise or usual. If, in agreement with the employer, the employees themselves provide equipment or material for the performance of the work in the arranged home office, they are to be adequately compensated by the employer. However, it can also be agreed that the employee shall bear these costs himself.

Q: Does the employer have to reimburse the employee for costs incurred in connection with home office?

A: With regard to the bearing of costs, a distinction must be made between work equipment and material on the one hand and expenses on the other. Work equipment is usually not significantly altered by its proper use (when working from home this may include for instance smartphones, monitors, computers, office furniture etc.). Their procurement usually represents a onetime financial expenditure. On the other hand, material is defined as the substance to be processed or worked on by the employee, which must be replaced on a regular basis (e.g. printer cartridges, paper). It is possible that the parties mutually agree that the employee must provide equipment and material and must also pay for the corresponding costs (Art. 327 CO).

Finally, expenses are costs which the employee incurs in the interest of the employer. They are directly related to and necessary for the performance of work. They may include, for example, telephone costs, fees for software licenses and rent.

In contrast to costs for work equipment and material, the necessary expenses for carrying out the work are normally always to be borne by the employer. The employer can therefore neither completely nor partially pass on such costs to the employee. However, the employer does not have to pay these expenses if they are incurred by voluntary home office rather than mandatory home office. The decisive question thus here is whether the employer provides the employee with a workplace on his business premises.

If this is the case but the employee still would like to work (partly) from home, such expenses are not considered necessary and are therefore not to be reimbursed by the employer. If, however, the employer does not provide the employee with a suitable workplace on his business premises and the employee therefore in the interest of the employer carries out his work from home, all resulting expenses are deemed necessary and must be reimbursed by the employer. However, it has not been clarified in court whether working remote during the pandemic is considered necessary or voluntary.

However, the Federal Council has decreed an exception to this with effect from January 18, 2021: In the view of the Federal Council (as provided for in Art. 10 para. 3 Covid-19 Ordinance), no reimbursement of expenses (such as for electricity or rental costs) must be paid for the duration of the general home office obligation. This regulation is justified by the fact that it is only a temporary arrangement. This regulation is no longer included in the latest version of the ordinance. It is currently unclear whether this is intentional and speaks in favour of an obligation to assume costs or whether there has been an oversight.

Q: What about liability aspects during home office, especially in connection with the use of (personal) electronic tools (IT security)?

A: All the usual legal conditions regarding liability and, in particular, confidentiality obligations and data protection also apply to remote work. Employees are obliged to follow the corresponding instructions of the employer. Employers in turn must ensure that compliance with these legal conditions and principles is also possible when working from home. Regarding IT, for example, this can be achieved by providing sufficiently protected devices and/or by assuming the costs for special programs on private devices. The employer may issue instructions regarding data protection and confidentiality obligations.

Q: Do the labor law regulations (rest periods, ban on night and Sunday work) also apply to working from home?

A: Yes, these regulations apply in principle without restriction also to working from home.

Q: What are the employer's obligations regarding the health protection of employees when working from home?

A: In principle, the employer must take the necessary and reasonable preventive measures to protect the health of the employee at the workplace. This duty (including compliance with the working time regulations according to ArG) also applies to working from home. The employer must observe the recommendations of the Federal Office of Public Health (FOPH) regarding the fulfilment of work obligations from home which have been summarized in an information sheet on the SECO website.

Q: Is there an obligation to record working time when working from home? If so, how is this to be implemented?

A: Yes, the employer's obligation to record working hours also applies to home office, unless regulated otherwise (e.g. waiver of recording working hours according to Labor Law Ordinance 1, LLO1). The recording of working time provides information about the employee’s organization of working and resting time. On the one hand, it serves to protect the employees and, at the same time, enables the employer to check whether the contractually agreed working time is in fact being fulfilled. Against this background, the recording of working hours must also be carried out correctly when working from home. A standardized recording of working time that does not correspond to the facts is also not permitted for remote work.

Q: As an employer, how can I control compliance with working hours when working from home?

A: Working hours can be recorded by means of electronic time recording systems, for example in the form of an electronic work diary, which enables the employer to keep track of the work actually performed. A physical recording is of course also possible, for example by using forms particularly created for this purpose. The regular transmission of the working time records to the employer can then for instance take place by email. If the employer desires to apply controls going beyond the recording of working hours, it is conceivable, e.g. to set certain rules regarding reaction times which allow for a certain degree of control over whether the employee is actually working. In any case, the employee’s private and confidential sphere must be protected when conducting control measures related to working time.

Q: Is the employer allowed to monitor / control the employee in the home office?

A: In general, companies may not simply monitor their employees. The personal and continuous monitoring of the conduct of employees by using monitoring and control systems that can record one or more activities or conduct is prohibited. The establishment of a monitoring and control system is only permitted if such a system is necessary for reasons other than monitoring behaviour, such as for safety or performance monitoring. Only if a first phase of anonymous monitoring reveals a certain suspicion, a specific check may be carried out on the employee concerned. Finally, the systems must be designed in such a way that the health and freedom of movement of the workers is not impaired. In addition, the employer must inform the workers in advance about the use of monitoring systems, at least in general terms.

Further questions about the labour law peculiarities in times of COVID-19 are answered in the magazine article "Coronavirus - What is to be considered from an employment law perspective?" is answered.

Our team of labor law experts will be happy to advise you on all questions regarding remote work (home office) whether specifically in connection with COVID-19 or otherwise. We look forward to hearing from you.
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