Switzerland Update: COVID-19 certificate at the place of work

Since 13 September 2021, the Federal Council has allowed employers to require a COVID-19 certificate  from their employees under certain conditions.

Indoor spaces

As of 13 September 2021, the Federal Council introduced an extensive certificate obligation for indoor spaces, such as the interiors of restaurants, fitness centres, museums, zoos, bars and events. The extended certification obligation will expire on 24 January 2022 and may be lifted earlier depending on how the situation develops.

The Federal Council has refrained from imposing a general obligation to provide a certificate in the workplace. Employers may only check that their employees have a COVID 19 certificate if it is used to determine appropriate protective measures or to implement testing concepts. The information about the immunity status or the test result may not be used for any other purpose. For example, if employees work in offices in close proximity to other people, it may regularly be appropriate to require a COVID-19 certificate as part of the protection plan.

Consultation and documentation

Before making a final decision on requiring a COVID-19 certificate in the workplace and related measures, the employer must inform and consult with employees. Employees are entitled to these participation rights (information and consultation) directly if there is no employee representation.

Management must take into account the views of employees expressed in the consultation before making the final decision and introducing appropriate measures. Employees have the right to make suggestions for alternative measures within a reasonable period of time. In our view, the employer has to reasonably consider employees’ suggestions and proposals but is free to decide on which measures to implement. In particular, an employer does not have to explain or justify if the employees’ objections/suggestions have not been taken into account or have only been taken into account in part

Finally, the employer must document in writing the introduction of the COVID-19 certificate review and the related actions.

Testing costs

If the employer requires a valid COVID-19 certificate in the workplace, it must offer a regular testing system in the workplace or otherwise cover the testing costs of the employees. From 1 October 2021, the testing costs for obtaining a certificate without symptoms will no longer be borne by the Confederation; however, the Confederation may continue to bear the costs of implementing a regular workplace testing system upon request / in consultation with the competent cantonal authority.

The employer is not obliged to bear the testing costs of employees if its protection concept provides for more differentiated measures (e.g. if employees who do not have a valid certificate have to wear a mouth guard or work in a home office).

Using “certificate light”

The COVID 19 certificate is issued in printed form with a scannable QR code, but can also be imported into the official Swiss smartphone app “Covid Cert”. In the app, employees can also activate a “certificate light”, which is stripped of personal health data. The certificate can be scanned with the official scanning app “Covid Check”. For data protection reasons, employers should use the “certificate light” as far as possible.

Conclusion

Stricter measures against COVID-19, such as requiring a certificate from employees, are also increasingly being considered legally permissible in the workplace. However, such measures must generally be assessed according to the circumstances of the individual case. The balancing of interests is often very delicate from a legal point of view, as important (fundamental) rights have to be weighed against each other.

By Marc Ph. Prinz & Gian Geel, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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