Who bears the consequences of the pandemic?

Question from an SSPM member:

During the pandemic, the music school asked me not to teach on site, but to work from home with Zoom. To this end, I set up a room so that it was suitable for teaching with Zoom and presentable to outsiders. I put my instrument and computer in a suitable place and removed private objects such as furniture and photographs. This effectively means that I can no longer use the room for any other purpose, because it has to be available for my work. As I don't know whether there will be any further confinement, I'm keeping the room as it is for the time being.

On the other hand, I had to prepare a lot of exercises and homework for online use, which meant a lot of extra hours, as I'm not used to working on a computer.

Do I have to bear all the consequences of the pandemic myself, or does my employer have to contribute in some way?

Response from Yvette Kovacs:

1. Like all educational institutions, music schools faced a completely new challenge in the spring of 2020. Due to the confinement imposed by the pandemic, they had to suddenly interrupt their programs or switch to distance learning. Many individually adapted solutions had to be found. The music schools paid tribute to the outstanding work of the teachers with letters of thanks. However, it's legitimate to ask whether these thank-yous are enough to compensate teachers for the extra time and expense involved, or whether the employer should go further.

2. In many industries, today's technology makes it possible to work away from the employer's premises. Working from home (telecommuting), in particular, is widespread, and has increased sharply due to the pandemic situation. Telecommuting is not explicitly mentioned in either the law of obligations or the public law labor law. The provisions on working from home are not adapted to the current situation. General labor law regulations and the gradual clarification of court rulings will therefore determine which provisions are to be taken into account for teleworking. SECO (State Secretariat for Economic Affairs) has published a brochure on this subject, which is available on the Internet.

3. In principle, employees have no right to work from home. On the contrary, they can and must only do so if instructed to do so by their employer. Containment situations during the pandemic, and FOPH instructions based on pandemic law requiring at-risk individuals to work from home, are an exception. In the absence of employer or FOPH instructions to telework, employees are obliged to work on their employer's premises.

4. If the employer or the authorities order teleworking, or if there are no longer any workplaces available with the employer and the employee must continue to work, the employer is obliged to compensate the employee for the resulting costs. Pursuant to art. 327a, para. 1 of the Swiss Code of Obligations, the employer must reimburse the employee for all costs incurred in performing the work. Pursuant to art. 327a, para. 3, in relation to art. 362 CO, these provisions may not be departed from to the detriment of the employee.

In a ruling handed down in 2018, the Swiss Federal Supreme Court expressly clarified that it was the employer's responsibility to pay for a room that an employee used as an office and archive for his work. Whether this room had to be specially rented for telecommuting or was already available was irrelevant. What mattered was that the employee did not have a suitable office at his employer's premises and had been instructed to work from home.

5. These considerations also apply to the costs and time involved in organizing and introducing distance learning from home. When new software has to be purchased, a room has to be made presentable, a grand piano has to be transported, or the employee has to familiarize himself with distance learning and the corresponding programs, these are expenses and overtime which must be compensated by the employer, as they are incurred exclusively in the latter's interest.

6. On the other hand, when confinement or the requirements of pandemic law are lifted, there is no longer any need to work from home. If the worker keeps the room as he had set it up in the likely event of a new confinement, he does so at his own cost and risk. In this case, the employer is not required to make any additional financial contribution. The situation is different if the employer and employee consider that the course of the pandemic situation is likely to lead to a return to teleworking, and agree that maintaining the room set aside for this purpose could even save costs. In this case, the employer must contribute financially.

Before or at the start of a teleworking phase, it is advisable to reach an agreement with the employer. This agreement should regulate the scope of teleworking activities, on-call hours and response times, the method of recording working hours, the arrangement and payment of teleworking expenses, the acquisition of and compensation for the use of devices and equipment, the consequences of breakdowns (e.g. Internet problems during teaching) and liability for activities carried out while teleworking. The obligation to compensate for the use of the employee's personal premises and equipment, as well as overtime caused by the introduction and guarantee of teleworking, should also be regulated.

If it is not possible to obtain a conventional regulation, the legal situation described above applies, and the employer must therefore reimburse the employee in full for the time and expense invested in the employer's interests.