Home office Switzerland

What was a marginal phenomenon just a few months ago has become widely established in many professions: the home office. As one of the measures to combat the pandemic, many companies have strict home office regulations for office workers, as recommended by the FOPH. A home office obligation is currently being clarified by the Federal Council (as of 07.01.2021).

A lawyer answers the most important questions

Many had to reorganize abruptly last spring: Take their computer or laptop home and set up a workstation at home. It goes without saying that this was not equally gratifying or practical for everyone. Initial euphoria about the commuting time gained and a more even work-life balance is flattening out even for those who can work relatively undisturbed and comfortably within their own four walls.   

One thing is certain: Home office is a blessing for some, for others a great challenge, even an imposition. But in view of the number of corona cases and the more contagious mutations, a tightening of the home office recommendation cannot be ruled out.

Since many employees and employers are intensively concerned with the home office topic, we have asked the lawyer Dr. iur. Melanie Huber of Kellerhals Carrard consulted. The law firm, which employs more than 300 people throughout Switzerland, including almost 60 at the Basel office, has a strict protection concept and generally allows its employees to work from home. Dr. iur. Melanie Huber is a specialist in all questions concerning employment law. Her answers to the most important questions provide clarity on the legal situation surrounding home office.

When do I have the right to work in a home office?

Dr. iur. Melanie Huber: "As a rule, there is no obligation on the part of the employer to enable home office and thus no right of the employee to home office. This is currently also the case in the current pandemic situation. Article 10 (3) of the Covid 19 Special Situation Regulation merely states that employers must observe the recommendations of the BAG. These stipulate that employees should work from home wherever possible. However, there is no obligation to do so.

However, due to the duty of care (Art. 328 OR), the employer is obliged to take all necessary and reasonable measures to protect the health of employees. In the current pandemic situation, this also includes the home office. The circumstances of the individual case must always be taken into account. Home office is particularly indicated if the necessary protective measures against the coronavirus cannot be implemented in the company."

What if my employer instructs me to work in a home office?

Dr. iur. Melanie Huber: "In principle, the employer cannot unilaterally change an agreed place of work or unilaterally order a home office without a special agreement. In the current pandemic situation, however, employees are likely to be obliged as a rule to comply with a temporary home office instruction on the basis of their duty of loyalty, insofar as this is reasonable for them."

Do I need a written home office agreement?

Dr. iur. Melanie Huber: "As mentioned, the employer may not normally order home office unilaterally. Thus, a verbal or written agreement on home office is required. In the current exceptional situation, however, it seems permissible for the employer to unilaterally order temporary home office.

However, it is recommended to draw up a written agreement in any case. This is in order to regulate the mutual rights and obligations and, in particular, also the bearing of costs (work equipment, material, expenses)."

Who bears the costs for the home office (monthly flat rate for rent, internet, telephone, printer cartridge, etc.)?

Dr. iur. Melanie Huber: "With regard to the bearing of costs, a distinction must be made between work equipment and materials on the one hand and expenses on the other. The equipment and materials required for work in the home office (computer, printer, paper, desk, etc.) must be provided by the employer; if the employee provides these himself in agreement with the employer, he must be adequately compensated for this (Art. 327 OR). Since the statutory regulation regarding costs for work equipment and materials is not mandatory, it can also be agreed that the employee bears these in full himself.

In contrast to tools and materials, the employer is obligated to reimburse the employee for any expenses incurred in the performance of the work (costs for Internet, telephone, electricity, heating, rental expenses, etc.). A deviating regulation to the disadvantage of the employee is not possible.

If the work in the home office takes place at the employee's request and a workstation is available to him at the company at any time, I believe it must be assumed that he must provide work equipment and materials himself without compensation and that the claim to reimbursement of expenses can be waived.

In the current pandemic situation, home office is likely to be ordered temporarily by the employer in most cases, although a workplace would be available in the company. In my opinion, in the current exceptional situation, the employee can be expected, on the basis of his or her duty of loyalty, to make existing private equipment and infrastructure temporarily available for work in the home office without compensation. Likewise, in my opinion, a pro rata assumption of rental costs for temporary home office work in connection with the corona virus is not appropriate. Of course, these questions in connection with the coronavirus have not yet been clarified by the highest courts, and there is a risk that a court will nevertheless rule in favor of an employer's obligation to compensate. If an employee does not have the necessary infrastructure, this must be provided by the employer. Likewise, the employee must be reimbursed for additional expenses (additional electricity costs or telephone charges)."

What applies to occupational health and safety in the home office?

Dr. iur. Melanie Huber: "Even when working in a home office, the employer is obliged to comply with the provisions of the Labor Act, in particular with regard to health protection, working hours and rest periods. Accordingly, working hours must also be recorded in the home office, daily rest periods must be guaranteed, and the prohibition of night and Sunday work must be observed.

We would like to express our sincere thanks to Ms. Huber for her contribution to this article. This interview was conducted in writing.

Further information

If you are interested we also recommend the November 16, 2020 Home Office Webinar by Dr. Urs Marti. He is a specialist attorney SAV labor law and co-head of the specialist group labor law of Kellerhals Carrard and recognized specialist for all labor and personnel law issues.

For questions related to COVID-19, please consult the information page "Corona Desk" by Kellerhals Carrard.

Editor: Neslihan Steiner