The COVID-19 pandemic has brought drastic changes to working practices. The Swiss government has encouraged employees to work remotely. It is very likely that – despite the relaxation of restrictions – employees will continue to work from home on a regular basis.
This is not without risks for employers. To mitigate these risks a number of issues need to be considered from an employment law perspective.
a) Right or entitlement?
Working from home requires an explicit or implicit agreement between employer and employee. As employment contracts usually define the workplace, it is best to envisage the possibility of a flexible workplace in the employment contract or an addendum.
b) Implications of working from home
According to Swiss employment law, the employer is legally obliged to provide the employee with work tools and materials, thereby enabling the employee to perform the contractual duties. In most cases, the employer provides a fully equipped workplace at its premises and the tools for flexible working (e.g. laptop, VPN).
Depending on the nature of remote work (voluntary or mandatory), an employee may not ask to be provided with additional tools and materials. Alternatively, a mutual agreement can be reached to waive the employer's obligation to provide additional tools for home working.
Different rules apply to the reimbursement of expenses such as heating or internet costs. An assessment of whether the costs were necessary to carry out the work is needed. This may not be the case if an employee is working voluntarily from home. In any case, it is possible to agree on a lump-sum allowance if this covers the effective average costs.
c) What does this mean for rental costs?
In a decision of 23 April 2019, the Federal Courts ruled that if rental costs are necessarily incurred the employer must reimburse them. As per this decision, reimbursement is required if the employer has an interest in the employee working from home, in particular if the employer does not provide for a suitable workplace at its premises, irrespective of whether the employee had to rent an additional room for this purpose. Where the home office is only in the employee's interest, the employee's expenditures on rent cannot be regarded as necessarily incurred and thus do not have to be reimbursed.
In the current COVID-19 pandemic, a home office is both in the employer's and the employee's interest. Whether under these specific circumstances employees may claim the reimbursement of rental costs is being discussed at present and a matter of some controversy.
However, given the temporary nature of the current measures and employees’ duty of loyalty to their employer, we are of the opinion that the employer will not be under any obligation to reimburse rental costs for this specific situation.
It is important to look into the specific case or situations and assess whether you as employer need to reimburse incurred expenses or provide for tools and materials. In any case, it is recommended that internal regulations are put in place, in line with Swiss employment law, to provide clear guidance to both the employer and its employees.
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