Coronavirus: Certificate control also in the workplace?
As a result of the tense situation in the health care system, the Federal Government introduces expanded certificate requirements for indoor areas of many cultural and recreational facilities as of September 13, 2021. In the workplace, there is no legal obligation to provide a certificate. However, it should also be possible for employers to check the certificates of their employees as part of their protection concept. Particularly in the upcoming winter months, employers will increasingly be faced with the question of what they need to consider when verifying 3G
Extension of Covid certificates to the workplace
To prevent overburdening the healthcare system, the Federal Government is relying on increased certificate controls in many areas of public life starting September 13, 2021. Workplaces are exempt from the certificate requirement, which even applies to employees of a company that legally requires a certificate. However, the use of the certificate is now also open to the employer, insofar as this serves to define appropriate protective measures or to implement test concepts. This article is intended to provide an overview of the legal requirements and consequences of the certificate obligation in the workplace.
Protective duties of the employer
As part of its duty of care, the employer is obliged to protect the health of its employees in accordance with Art. 328 of the Swiss Code of Obligations ("CO") and Art. 6 of the Swiss Labor Act. In the current pandemic period, therefore, all measures appropriate to the technical and economic conditions of the business must be taken to protect employees from infection with the coronavirus. In particular, the employer must ensure that the rules and recommendations of the Federal Office of Public Health ("BAG") concerning conduct and hygiene can be observed by employees at all times. Depending on the operational risk, further protective measures such as the possibility of home offices or the wearing of face masks must be implemented (Art. 25 of the Covid-19 Regulation Special Situation). The employer is responsible for the selection and implementation of these measures, i.e. the decision on the specific protection concept is left to the employer. The introduction of mandatory certification is a new addition to the range of protective measures. This measure may be indicated in particular for work with an increased risk of transmission, for example in the case of contact with patients or particularly vulnerable persons, close or prolonged contact situations, or when numerous persons are present in one room.
Information and consultation duties of the employer
The employees are affected to a large extent by the concrete design of the protective measures. Accordingly, the employer is subject to a prior obligation to inform and consult with regard to the entire protection concept. If this is to include a certification obligation, this measure must also be presented to the employees and submitted for consultation. If relevant, the employee representative body must be consulted, if such a body has been appointed. Otherwise, the implementation of the consultation obligation is left to the employer. This can be done by e-mail. The employees must be given a period of approximately three to five days to comment on the proposed measures. It is important that the employer must carefully state the reasons for accepting or rejecting proposals and comments from employees and must communicate these reasons.
Simplified protective measures in case of certificate obligation
The employer is responsible for determining appropriate protective measures and can design these depending on the certificate requirement. If the protection concept is supplemented by a certificate obligation, previous protection measures can be adapted. It is important that the protection concept as a whole appears appropriate. Certificate-related differentiations are also permissible, such as requiring persons without certificate to wear a mask or to work in a home office, while persons with certificate are exempt from this requirement. Even if a full certification obligation is introduced, however, a relaxation of the protective measures remains at the discretion of the company and is therefore not mandatory.
When designing the protection concept, it must be ensured that there is no discrimination between those who have been vaccinated and those who have recovered and those who have not been vaccinated, and that no pressure is exerted on employees. If the employer introduces an obligation to provide a certificate, it must itself offer regular tests or bear the costs of the tests. The certificate must be shown only once during its validity. A rapid test is valid for 48 hours and a PCR test for 72 hours, which means that for unvaccinated persons a test is required every two to three days. Cost coverage is waived for differentiated measures, such as mask-wearing or home office for persons without a certificate. The Federal Government then assumes the costs of repetitive tests in the company.
Hurdles under data protection law
The Data Protection Act ("DPA") applies to all processing of personal data by federal bodies and private individuals and thus also binds companies. In terms of data protection law, the certificate at the workplace can prove to be particularly sensitive, especially since the certificate contains personal data about health that is particularly worthy of protection within the meaning of Art. 3 lit. c No. 2 DPA. According to Art. 328b CO, the employer may then only process data about the employee insofar as this is necessary for the execution of the employment contract. Accordingly, the employer is subject to certain restrictions when checking the certificate. In particular, the data may only be used for the determination of appropriate protective measures or the implementation of the test concepts - and not otherwise. In addition, employees must be adequately informed in advance about the specific use of the certificate data. For data protection reasons, the low-data "certificate light" should be used if possible, from which no health data can be read. Compared to the conventional certificate, this only shows whether the person in question has a valid certificate and not whether he or she has been vaccinated, recovered or tested.
Obligation to test and vaccinate?
The employer may introduce a duty to obtain a certificate, but not a general obligation to vaccinate. In principle, vaccination remains voluntary; no pressure may be exerted on employees to be vaccinated. Exceptions to this rule, i.e. compulsory vaccination, may apply to particularly exposed groups of employees. On the other hand, the certificate obligation for employees without immunity status is compulsorily linked to a testing obligation. If the employer requires proof of certification, it must bear any testing costs and the time spent on this is considered working time. If the presentation of the certificate is refused, differentiated protective measures can initially be linked to it. If the protection concept provides for a strict obligation to produce the certificate, failure to do so constitutes a violation of the obligations under labor law, which may result in a warning, a transfer within the company or ultimately (immediate) dismissal. If the employee is prevented from working due to the certificate, no salary payment is owed.
The selection and implementation of concrete protective measures in the company remains the individual responsibility of the employer. The employer is now additionally permitted to use Covid certificates, provided that the framework of labor and data protection law is complied with and the employee is not subjected to any pressure or discrimination. The extended certificate obligation is to apply for as long as the epidemiological situation requires. Currently, the measure is limited until January 24, 2022. If the health situation improves, the Federal Council has reserved the right to lift the measures earlier.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.