Teleworking: our advice to swiss SMEs to be in good standing with labour law
As lawyers-entrepreneurs at the service of entrepreneurs and companies, the attorneys of Watt law partner with managers and companies, availing their expertise to serve them, businesses are essential to the French-speaking economy.
Our experience
Our experience with our partners has highlighted common concerns and recurring issues regarding remote working, especially since the outbreak of COVID-19 and the introduction of the first health measures in March 2020. While the authorities advocate the use of telework in the current context, there are many uncertainties about its implementation and legal framework for companies.
The exercise of the professional activity in telework was, at the time, an exceptional situation, negotiated on a case-by-case basis between the employer and the employee. From now on, this model is a concrete and generalized reality.
Therefore, entrepreneurs and company managers who have to use teleworking to continue their business activity during this period of crisis, often face additional difficulties. In this respect, the absence of specific legal provisions creates legal uncertainty which needs to be clarified.
While the measure is often subject to precise regulation in large structures, collective labour agreements or the public sector, few smaller companies have clear guidelines. However, a teleworking agreement is an effective and safe solution that we recommend for the employer and the employees involved.
As entrepreneurs and company managers, here you will find some answers to the many questions you have, useful links, as well as tips to prevent possible disputes.
Telework: definition
Telework means the exercise, on a regular and voluntary basis, of a professional activity at a distance from the employer through the use of telecommunication technologies, such as fixed and laptops, Internet, mobile telephony, tablet, fax, etc.
Teleworking is not specifically regulated by Swiss law
Current Swiss law does not contain specific legal provisions regarding distant working.
These particular situations therefore remain subject to the Code of Obligations(Art. 319 et sec CO)and the Labour Act(LTr).
In Switzerland, some public bodies and companies have taken the lead and regulated the practice of homeworking. We can mention here the cantonal regulation on teleworking of employees of the State of Geneva,in force since 2010. However, telecommuting in Geneva is not more or better regulated than in the other cantons.
Where they exist, the scope of those regulations is limited to the undertakings and administrations concerned and those regulations are therefore not binding on third parties.
In this context, the advice that will follow can be valuable to you.
1. Protect the health of your employees working from home
As a business leader or human resources manager, it is up to you to measure the needs of your structure and adopt best practices in terms of organizing operational activity, which includes protecting the health of your employees.
In this perspective, your attention must focus on several aspects:
1.1 Implement telework where possible
An employer must protect the health of the employees at work. The health situation related to COVID-19 has led to theadoption of specific health measures. These measures include commute working.
Although no obligation has presently been formulated, the Federal Council, in its press release of 19 October 2020,explicitly recommended teleworking where possible.
From a legal point of view, this recommendation raise many uncertainties: telework is neither a right for the employee nor an obligation for the employer, so there are many questions.
For example, what can be the consequences if an employee refuses to go to the company’s premises, when his employer is opposed to teleworking?
Unfortunately, there is no comprehensive answer. The absence of legal provisions or internal regulations makes it necessary to examine this type of situation on a case-by-case basis. Decisions must always be taken with all the necessary hindsight and the interests at stake.
Such situations could become widespread and with them potential disputes, with all the consequences in terms of tensions in the professional relationship and repercussions on productivity.
We therefore strongly recommend that you anticipate these situations by means of an agreement specific to the exercise of telework that the rights and obligations of each are clearly defined.
1.2 Take into account the well-being of teleworking employees
Swiss law imposes an obligation on companies to protect the health of their employees. This obligation also applies when an employee carries out his activity through distant working.
The lockdown of this spring 2020 revealed the importance of social interaction as a factor of emotional stability.
This observation must be considered for employees working from home in order to prevent the development of disorders, particularly psychological ones, such as the feeling of social isolation, moral exhaustion or the feeling of increased pressure on the part of management as well as reprehensible behavior such as mobbing, or harassment.
It is important, as a business leader, to properly assess these risks, which implies not only well knowing your employees, but also being able to foresee these conditions and their triggers.
In order to measure employees’ exposure to the risks of psychological distress and implement the necessary preventive actions, the following tools may be useful:
- Implementation of anonymous questionnaires with employees
- Regular taking of the “temperature” by an employee with this role in the structure
- Implementation of virtual spaces dedicated to exchange, such as the Team Time tool proposed by Health Promotion Switzerland
1.3 The ergonomics of the workstation at home is essential
From a practical point of view, it is very difficult to control the ergonomics of your employees’ workstations when they work from home. Yet it is a key factor in the well-being of workers and, ultimately, their productivity.
To provide a concrete answer to this subject, the opportunity must be given to each employee concerned to describe his working environment outside the company’s premises and the equipment at his disposal. As an employer, you will be able to ensure that these elements are actually adapted to the exercise of his activity, by the employee. Depending on the situation, it may be necessary to provide the employees with the appropriate equipment.
2. Respect the teleworking employees schedule
2.1 Keeping Record of remote working time
Swiss law states that it is mandatory for the employer to record his employees working time. Thus, with some exceptions(Art. 73a and 73b OLT1),the working time and breaks of a duration equal or greater than half an hour must be entered systematically (Art.73 OLT 1).
It is therefore essential to respect this obligation in the context of teleworking, too. This means having reliable technical means. There are different software and applications available for this.
When implementing one or the other of these tools, communication with employees is essential to ensure their effectiveness. It must be clear to both the employer and the employees that the purpose of reporting working time is not to control employees, but to enable the employer to ensure that the maximum daily working time is respected; that rest and break times are actually taken and that work is not carried out at night or on Sundays.
In Switzerland, labour law remains relatively flexible, it offers the parties a certain freedom in their business processes, provided that it is the subject of an agreement and that a situation that is intended to be temporary and exceptional does not become a habitual practice and is destined to continue.
Whatever the situation, it is imperative for companies to be able to provide data on the working time of their employees, in case of control by the authorities.
2.2 Working hours and time
If there is no contractual or regulatory provision regarding working hours, the employer must provide the employee with information on the mandatory legal provisions applicable to working and rest periods.
Mainly:
- The daily working time must be within fourteen hours and may not exceed twelve and a half hours per day(Art. 10 para. 3 LTr, 15 LTR and 18 OLT1);
- The duration of work must be interrupted in the middle by one or more breaks of at least(Art. 15 LTr and 18 OLT1):
- A quarter of an hour if the working day lasts more than five and a half hours; half an hour if the working day lasts more than seven hours;
- One hour if the working day lasts more than nine hours. Only breaks of more than half an hour can be split.
- Daily rest (The time between the end of work in the evening and its resumption the next morning) must be at least eleven consecutive hours. It may be reduced to eight hours once a week, provided that the two-week’s average work time reaches eleven hours (Art. 15a LTr).
- Without authorization, night work as well as work on Sundays and public holidays are prohibited. In case of introduction of evening work (between 8 pm and 11 pm) the employer must first consult the employees (Art. 10 LTr).
2.3 Define periods of remote work and free time
In the context of teleworking, the distinction between the private and professional spheres can be tenuous. If in theory it is up to the employee to ensure this distinction in his place of life with the people who live together with him, in practice the border is rarely immutable.
It is therefore essential that the employer clearly and in advance delimits the periods of the day which he considers should be devoted to the exercise of the professional activity by the employee and during which the latter can and must be able to be requested by his employer or colleagues.
This basic precaution allows everyone to organize themselves by avoiding unnecessary tensions on both sides.
3. Coverage of the professional expenses of teleworking employees
If we refer to the Code of Obligations (327a para. 1 CO), all expenses incurred by an employee in the exercise of his work must be borne by the employer.
A lump sum allowance may be set up to cover these costs, but this requires that a written agreement has been signed between the employee and the employer, and that:
- All costs are actually reimbursed to the employee
- The agreement concerns a sufficiently long period (several months to a year)
In the context of teleworking, a number of expenses are already covered by the employee on a private basis, such as Internet subscription or rent.
In this case, the employer has no obligation to cover these costs, which in any case are insured by the employee, regardless of his situation as a teleworker.
Finally, if the employee does not have a specific place where he can work, or if the equipment and furniture at his disposal are not suitable, the employer has the obligation to make the necessary arrangements and incur the corresponding costs to ensure that the working conditions comply with the exercise of his professional activity by the employee.
4. Beware of teleworking for cross-border workers in Switzerland
Particular attention should be paid to employees residing outside Switzerland, both for working time worked from home and for a potential double activity.
4.1 What are the risks if a cross-border worker exceeds 25% of his teleworking activity rate?
If we take the example of a cross-border worker living in France and working in Switzerland, it is important to know that the number of days during which this cross-border employee can telework from his French home is limited to 25% of his overall working time. Beyond that, the worker is considered to be subject to the country’s social security system.
If this quota is not respected, the state of residence – in this example France – would be entitled to claim the payment of the charges on the basis of French social law, as well as the edition of a salary sheet to French standards. This situation can turn into a real administrative nightmare for a Swiss SME and lead to significantly higher personnel costs given the different contribution rates applied by each country.
The percentage of working time at home, taken into account by the authorities, is assessed over a period of one year. This relatively long period of time leaves a certain flexibility to the company with regard to the organization and management of its human resources.
It should be noted that it is the status of workers “residing abroad” – and not the nationality of the worker – that is, here, decisive. Then, within your company, Geneva or Swiss employees working remotely are considered in the same way as foreign employees with cross-border status and therefore with a G permit.
Since March 2020 and in order to take into account the exceptional situation related to COVID-19, agreements have however been made between the various countries of the European Union and EFTA, Switzerland is a member, so that this maximum time (25%) does not apply.
Initially in force until the end of 2020, this derogation was extended by the FSO, which announced, on 26 November 2020, the extension of the amicable agreement between France and Switzerland, until 30 June 2021.
As the situation and therefore the measures applied remain uncertain for the future, the situation of these workers must be the subject of particular attention.
4.2 Double work activity : Border workers
We invite you to pay particular attention to cross-border employees who are working in their country of residence more than 25% of their total work time. In this case, the employee is considered to be engaged in a double work activity and must also be subject to the social security scheme of his country of residence. We will elaborate on this point in a specific post.
5. Set up a telework agreement to protect the company and the employee
As this article shows, delving into issues related to teleworking is often like an immersion in troubled waters.
While the legal framework in terms of labour law may seem incomplete, it nevertheless leaves sufficient flexibility for the parties to regulate, in a bilateral contract or in an internal and general agreement, the modalities of work for the employer and employees wishing or legally obliged to resort to teleworking.
To be effective and provide real solutions, such a contract or an agreement on remote working must contain all the rights and obligations, both from the point of view of the employer and the employee.
This article addresses some important questions. But there are still many subjects and points of vigilance, especially in view of the uncertain evolution of the current context and the measures that could be adopted in the coming months.
Concluding a telework agreement allows you to set up a clear and comprehensive legal framework. You will be able to anticipate and limit your company’s exposure to the many issues involved in working from home.
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