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 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. The central point for the following explanations is that this is a quarantine, although by definition no corona disease has yet been diagnosed. If the employee is suffering from corona, he or she must be placed in isolation.
This uncertain or legally not completely clarified initial situation can be countered by the parties, i.e. the employer and employee, resolving possible scenarios jointly and amicably, taking into account the interests of both parties. In any case, a discussion with the other party to the contract must be sought in advance. It should also be examined whether corona compensation can be claimed under the COVID 19 Act (see below).
In the following, an attempt is made to bundle possible individual cases concerning the quarantine obligation in Switzerland and to classify these groups of cases legally. Whether the legal assessments set out below are in fact correct can only be predicted more accurately once the 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 wages, 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 and 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 wage 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 taken up during the holidays, and therefore he has to be quarantined on return to Switzerland: there is a claim 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 has has been infected by the coronavirus and he therefore must be placed in officially or medically ordered quarantine (e.g. if the employee's partner is 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 wage, 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 work from home. 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.
Whenever there is a quarantine 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/. Corona compensation can also be claimed retroactively.