Continued payment of wages in case of quarantine

Whether the employer is obliged to continue to pay wages if the employee has to go into quarantine due to a possible infection with the coronavirus has – as far as can be seen – not yet been clarified in court. Furthermore, there are no laws regulating such exceptional situations. Thus, an exact legal prognosis or information is extremely difficult at the moment. Pivotal in order to understand the following explanations is that there must be a quarantine, where by definition no corona disease has yet been diagnosed. If the employee is already suffering from corona, he or she must be placed in isolation.

 

This uncertain or legally not completely clarified initial situation can be addressed by the parties, i.e. the employer and employee, resolving possible scenarios jointly and amicably, taking into account the interests of both parties. Thus, in any case, settlement discussions with the other contracting party must be sought in advance. It should also be examined whether corona compensation can be claimed under the COVID-19 Act (see below “Important note”).

 

In the following, an attempt is made to bundle possible individual cases concerning the quarantine obligation in Switzerland and to legally classify these groups of cases. Whether the legal assessments set out below are in fact correct can only be predicted more accurately once first court decisions have been made:

a)     The employee is stuck at the holiday resort because it has been quarantined: The employer is not obliged to continue to pay the employee's wage, because the employee is responsible for the timely return home.
b)     The employee travels to a country that is already on the risk list of the Federal Office of Public Health (FOPH) and has to be quarantined after returning to Switzerland: the employer is not obliged to continue to pay the salary as the employee voluntarily went there on holiday, whereas the quarantine is the employee's own responsibility. In this case the employee knew that the country was on the risk list of the FOPH. However, if the employee is sent to a risk area on a business trip, he is entitled to a salary even during the quarantine.
c)     The employee travels to a country that is not yet on the risk list of the FOPH on departure, but which is added to the list during the holidays, and therefore he has to be quarantined on return to Switzerland: there is an entitlement to a wage, since at the time of departure it was not known that a quarantine had to be maintained on return.
d)     The employee has been in contact with a person who is suffering from the coronavirus and must therefore be placed in officially or medically ordered quarantine (e.g. if the employee's partner tested positive): The employee is entitled to a salary, as the prevention of the work performance is not the fault of the employee.
e)     The employee voluntarily goes into quarantine, i.e. the quarantine has not been ordered by a doctor or a cantonal authority: The employee is not entitled to a salary, even if he was warned via the SwissCovid app (so-called contact tracing).

In the case of quarantine obligations, it must always be checked whether the employee can also carry out work from home (home office). If the technical and organisational possibilities exist, the employee must work from home and is therefore entitled to his usual salary.

In the case of effective coronavirus illness, the continued payment of wages is based on art. 324a CO. Furthermore, for the care of sick children art. 36 para. 3 of the Swiss labour law applies.

Important note:
Whenever a quarantine has been ordered by a doctor or the authorities (e.g. the Basel City Health Department), any claim for corona compensation must be examined in accordance with the COVID 19 Act. The employer who continues to pay the wage must register the claim. The corona compensation amounts to 80% of the average salary. Further information is available at https://www.ausgleichskasse-bs.ch/news/zwischeninformation-zur-corona-erwerbsersatzentschadigung-gemass-dem-neuen-covid-19-gesetz/ (in German only). Corona compensation can also be claimed retroactively.