Philipp Haymann20.04.2021

COVID-19: Employment Relationship / Update and Analysis

Significant changes have been introduced with the latest amendment of the labour law provisions of Ordinance on Measures to Combat Coronavirus (COVID-19 Ordinance 2), which has been in force since 13 March 2020, mostly in favour of employees. The new regulations even allow employees to enforce their release from work (garden leave) under certain circumstances.

Increased protection for particularly vulnerable persons/workers at high risk

Firstly, the principle still applies that particularly vulnerable employees should fulfil their contractual obligations at home (home office) whenever possible.

The regulations for employers to protect this category of employees at high risk were again tightened. If the (contractual) work cannot be performed from home, the employer must assign the affected employee equivalent substitute work that can be performed from home (without loss of salary). However, if the employee's presence on site is indispensable, she/he can only be employed at the contractual place of work (as a particularly vulnerable person) in the (contractual) position/capacity under narrowly defined conditions, i.e. by constantly ensuring the distance rule of 2 metres and avoiding close contact at any time (otherwise work must only be carried out by applying the STOP principle; see below). If this is not possible, the employer must assign equivalent substitute work on site, which can be carried out in compliance with the protective measures. If this is also not possible, the employer must release the employee from work, with continued payment of salary (garden leave).

Work can be rejected

In addition, the employee concerned (at high risk) has the right to refuse work assigned to him if he "considers the risk of infection with SARS-CoV-2 at the workplace to be too high for him for special reasons" – despite the measures taken by the employer. Thus, a completely subjective element in favour of the employee has been created, which the employer will find difficult to oppose.

Although the employer may request a doctor’s attestation confirming the employee's special reasons for refusing the work assigned, the hurdle to obtain such attestation should not be too high, as has already been experienced in the past with respect to medical certificates.

The employee's duty to loyally safeguard the employer’s legitimate interests, which at the time of the Coronavirus crisis is also manifested by the need to show a certain flexibility – in particular with regard to substitute work assigned – is thus weakened to a considerable extent.

Insecurity for employers: When is a person "at high risk"?

The term of a "person at high risk", which is decisive for the employer's further guidance and operational organisation, has now been defined more precisely on the basis of medical criteria, according to the explanation given, in particular to clarify whether an employee belongs to this (exposed) group and the employer must therefore take special precautionary measures. The Ordinance primarily mentions those medical conditions, which make a particular risk in combination with COVID-19 appear unambiguous even to a medical layman (high blood pressure, cardio-vascular diseases, chronic respiratory diseases, diabetes, cancer).

Then however, in a very general fashion, diseases and therapies that "weaken the immune system" are also mentioned. Existing uncertainties for employers are hence not removed, especially due to the fact that the newly highlighted (medical) criteria are explicitly to de deemed non-exhaustive.

The STOP principle

The STOP principle is hierarchically structured and describes the step-by-step procedure for protecting workers in the event of potential health hazards:

  1. Substitution: Either eliminate health-endangering work completely or "defuse" it to the extent that there is no longer any danger.
  2. Technical measures: “Lock up" or reduce hazards by introducing protective devices.
  3. Organisational measures: Stays at the workplace with potential exposure must be limited in time and personnel. The personnel must be given specific training.
  4. Personal protective measures: Adequate protective equipment must be selected. The use of personal protective equipment (PPE) is often strenuous and individual errors can quickly lead to failure of protection. For this reason, the use of PPE should in principle only be regarded as a supplementary measure to the above collective protective measures.