Switzerland: entry into force of a somewhat vague telework obligation

According to an ordinance promulgated by Switzerland’s Federal Council on 13 January, telework is mandatory throughout Switzerland from 18 January 2021 to 28 February 2021. The measure that various lobbies have tried to stall since December 2020 was finally adopted prompted by the worsening health situation. So, what had previously been a recommendation has now become an obligation, potentially affecting nearly 2.1 million people, according to estimates by the Federal Statistical Office. However the ordinance is less binding than it first appears. The text specifies that telework must be implemented in all companies, “wherever possible without disproportionate effort and as long as the nature of the activities allows it”, a somewhat vague indication that leaves a certain margin for maneuver. “The employer is required to conduct a situation analysis and decide what it can implement at a reasonable cost. The employer continues to be responsible for the health of its employees,” clarified Marco Taddei, head of the Swiss Employers’ Association French-speaking Romandy section. Each company must therefore decide for itself. Exceptions are however possible. “An employer not wishing to comply with this obligation will have to justify it objectively. The cantons’ relevant bodies in charge of implementing the measures may have to check if such justifications are sufficient”, explained Benoît Gaillard, spokesman for the Swiss Trade Union Federation (USS). The State Secretariat for Economic Affairs (SECO) also indicates that it is possible to turn to the cantonal labor inspectorate if an employer refuses to authorize working from home, even when possible. Another confusing area surrounds the issue of who bears the cost of home working, and the ordinance does not really throw light on the issue. The USS is demanding that the ordinance be amended to clarify the nature of the costs to be borne by employers and it is also calling for telework to be regulated by a collective agreement.