As of 6 March 2020, around 200 persons in Switzerland have been ordered to stay in quarantine (https://www.rts.ch/info/suisse/11139730-la-situation-sur-le-front-du-covid-19-est-serieuse-estime-l-ofsp.html) and handful of kindergarten and schools had to close. In the rest of the world millions are under quarantine and over 300 million children must stay at home due to the coronavirus (https://www.nytimes.com/2020/03/04/world/coronavirus-schools-closed.html).
In this article, I will briefly outline if employees have the right to receive their salary should they be ordered to stay at home because of a quarantine (I) or because of school closure due to a coronavirus outbreak (II).
I. Order of Quarantine
Whether the employer must continue to pay the salary of employees placed in quarantine will depend on the circumstances of the case.
Quarantine ordered by the authorities in case of sickness. Here the case is clear. The employee who is sick must remain at home and the employer must pay the salary in accordance with Art. 324a CO for a limited period of time. The employee must hand in a medical certificate as usually required.
Quarantine ordered by the authorities in case of suspicion or to prevent further spreading. If the quarantine is ordered by a competent authority, there are two scenarios possible. Either the employee is placed in quarantine through no fault of his or her, because, for example, he or she was in contact with an infected person. In this case, he or she is entitled to continuation of wage during a limited period of time. On the contrary, if the employee acted recklessly, for example by travelling privately in a highly affected zone such as South-Korea, North-Italy or Iran, the employer may refuse to continue paying his or her wages during a quarantine.
A diverging opinion exists, however, according to which, even if the employee did no act recklessly and the quarantine results from an order of the competent authorities, the employer may also refuse to pay the wages. It is will up to courts of law to decide on this very specific point in case of labor disputes.
Closure of the employer premises ordered by the authorities. The closure of the business premises ordered by the competent authorities and the ensuing impossibility to perform work is a normal economical risk, which consequences are to be borne by the employer. In such a case, employees prevented to enter the premises and not being equipped to perform home-office would be entitled to wage continuation. However, this view is disputed and courts may decide that an international epidemic is not a normal business risk (such as a fire or power-outing), but an act of nature beyond control, which would not warrant wage continuation.
II. Closure of School
School closure but no quarantine of the employees. Should a school close forcing parents to stay at home to take care of their children (even not sick) the salary is due for a limited period of time only and not beyond what is necessary for parents to find a suitable child care solution. In most companies, personal regulations allow parents of sick children to take up to 3 days of paid-leave in order to organize such alternative child care. The 3-days period is meant as a guiding principle and it could be extended based on exceptional circumstances. Currently, it is foreseeable that parents may not find a suitable replacement solution as grand-parents (who are usually the first ones to look after sick children) should not, according to Federal Office of Public Health, enter in contact with children and as it might prove difficult to recruit baby-sitters ready to look after children from a school with suspected or confirmed cases of coronavirus. In such a case, it is arguable that the obligation to pay the salary should extend beyond the usually 3-days period if parents, despite their efforts, did not manage to find a suitable solution. The State Secretariat for Economic Affairs takes the view that parents should do all what is expected to avoid extended absences but does not specify how many days are considered an extended absence. In order to minimize their absence from work, parents should look after their children taking turns.
III. Conclusion
Wage continuation in case of absence from work is not self-evident. Many circumstances are to be taken into account to decide whether you are entitled to receive your salary if you are not able to perform your work.
If you have any questions or seek further clarifications don’t hesitate to reach out to me over LinkedIn or my email address (yasmine.sabeti@sabeti.com).
This article is not meant to provide legal advice and should not be construed so. Every situation is different and warrants a careful analysis