What can the employee do if the employer does not comply with the protective measures (or plans)?

The “deconfinement” measures decided by the Federal Council – in several stages – were and are accompanied by an obligation to put in place protection plans, whether for the public with access to the company or facility (e.g. its customers), or for the people working in the company.(1)

From the point of view of labour law, as an employer, the person in charge of a company is obligated to set up, implement and ensure the respect of these protection plans; if he fails to do so, he violates his obligation to protect the personality (and also the health) of his employees, an obligation that derives both from public labour law (2) and from the (private) law of the employment contract.(3)

Compliance with the rules of public labour law must be monitored ex officio by the authorities, those responsible for the application of the labour law, as is confirmed by Article 11 of the above-mentioned Ordinance COVID-19 Special Situation, which reads as follows: “In application of the provisions relating to health protection laid down in Art. 6 of the Labour Act of 13 March 1964, the enforcement of article 10 is the responsibility of the authorities responsible for enforcing the Labour Act and the Federal Accident Insurance Act of 20 March 1981”. According to the doctrine, “[n]otice or lack of a protection plan may lead to the closure of the establishment or the prohibition of demonstrations (art. 6a para. 5 O-2-COVID-19 and art. 6d para. 5 new O-2-COVID-19). Supervision is carried out by the cantonal authorities (in particular the labour inspectorate, the commercial police and the cantonal doctor). The penalty of closure must be proportionate in its duration to the seriousness of the offence; it is pronounced in a context where the rules and principles of administrative procedure must be respected; in our opinion, there is nothing to prevent the authority from first issuing a warning, especially in cases of little seriousness”.(4)

Again from the point of view of public law, in “the presence of defects that compromise the protection of health, which he cannot eliminate by himself, each employee must notify the employer without delay”.(5) If the employer does not take the necessary measures, or refuses to do so, the employee may report the case – or complain – to the labour law enforcement authorities (6) (labour inspectorate, commercial police and/or cantonal doctor), who will then have to intervene. With regard to protection plans and other anti-crisis measures, it must be recognized that workers should also be able to report or denounce infringements anonymously. This is already the case today. However, it should be ensured that in the context of the crisis such denunciations are taken even more seriously and followed up. The limits of this possibility for small businesses with few employees should also be taken into account, since it could in such cases be too easy to find out the source of even an anonymous denunciation.

As far as the (private) law of the employment contract is concerned, the authorities do not automatically ensure that it is respected, but it is up to the employee to defend his or her rights himself or herself. An employer who does not take the necessary measures is not only criminally liable,(7,8) but also civilly liable towards his employee, who has various civil law actions at his disposal to defend himself (action for establishment, compensation, etc.) before the courts, but these are relatively little used and effective.(9) The doctrine admits that when the employer has been duly warned to take the necessary measures within the meaning of article 328 CO to protect the personality of his employee, but fails to do so, the employee is authorized, at least when the infringement is significant and manifest, to suspend his work while retaining the right to receive his salary, on the basis of articles 82 and 324 CO.(10) However, since Swiss law provides only limited protection against dismissal, this possibility must be approached with caution.(11,12) Indeed, if the employer reacts by serving notice of dismissal on an employee who refuses to work, the dismissal would certainly be unfair within the meaning of art. 336 CO, but would remain valid, with the employer risking at most having to pay compensation for unfair termination. Employees denouncing violations (internally or externally) are therefore forced to accept the risk of dismissal. And the protection against dismissal is also quite limited for whistleblowers.

Workers are likely to be most knowledgeable regarding the measures ensuring their protection in the workplace and mechanisms taking their experience and their views should be put in place. In addition, whistleblowing procedures should be encouraged and should include whistleblower protections. Empirical data should ideally be collected on the protection of workers in the workplace, as a contribution to occupational health knowledge.(13)

Specific categories of workers are more difficult to protect and will require particular attention, including as regards the protection of their human rights and of their right to life and physical and mental health. Among these, undocumented migrants, including domestic workers, for whom their situation and the frequent absence of a formal work relation limits their capacity to question or report their situation. Trade unions and Non Governmental Organizations have published positions in this regard.(14)

This situation reflects the coexistence of a strong legal principle and important difficulties in its implementation.

• The right to life and physical and mental health must be upheld throughout the legal system (Art. 35 para. 1 Federal Constitution), including labour law. These obligations are also entrenched in a number of international conventions of the International Labour Organisation signed by the Confederation. If the State is the employer (for instance in the education and health sector), it is fully and directly bound by the human rights duties of the Constitution and ILO conventions. If the employer is a private actor (i.e. a private company), the human rights obligations are indirect (they pass via State authorities). State authorities (including legislators, labour courts, labour inspectors) must ensure that fundamental rights apply to relationships among private persons (Art. 35 para. 3 Federal Constitution), i.e. they must ensure that private employers respect and protect the right to health of their employees.
• The obligations must be enforced by the State – that is why labour inspection offices must be in place and effective. Swiss labour law, however, is not very well developed, by international comparison, with regard to the protection of employees against dismissal, in particular against unfair or unjustified dismissal. Such a situation stands in the way of effective enforcement of protective measures. With regard to protection plans and other anti-crisis measures, it must therefore be recognized that workers should also, or even more so, be able to report or denounce breaches anonymously. The fact remains that employees denouncing violations (internally or externally) are forced to accept the risk of dismissal and that the protection against dismissal is also quite limited, even for whistleblowers. These issues will not be solved in the short run.

In consequence, we recommend:

1. Labour inspections should become all the more proactive, and more frequently and spontaneously inspect workplaces; these authorities should be better resourced to face the crises (and contribute to protect life and contain the spread of the virus); they should accept all the more anonymous information. 
2. The implementation of targeted information campaigns aimed at both employees and employers regarding these obligations, including within the home or other places of informal work.
3. Technical assistance and proactive public inspections to assist in the implementation of protection plans for smaller businesses which may face greater difficulty complying with new requirements.
4. The support of hotlines, including anonymous ones, implemented through NGOs and trade unions.
5. Serious consideration of regularization measures for undocumented migrants in the informal labor market.