The employer's duty of care in times of the Coronavirus

The current spread of the coronavirus poses challenges for both employers and employees. In particular, whether an employer is violating its duty of care if it continues to send employees on business trips.

By Simon Urbach, Zurich

Mar 03 2020

According to Swiss labor law, the employer has a duty of care to his employees. The employer's duty of care is the counterpart to the employee's duty of loyalty (Art. 321a OR). It obliges the employer to provide protection and care for its employees and to refrain from doing anything that could conflict with their legitimate interests. The limits of the duty of care are the employer's own interests, insofar as they outweigh those of the employees.The duty of care is indirectly regulated in the Swiss Code of Obligations. It includes numerous aspects that have been incorporated into the Code of Obligations and other laws, such as the general protection of the personal rights of employees (Art. 328 OR).The personal rights of employees which the employer is required to protect include also life and health, as well as physical and mental integrity. To protect life, health and personal integrity, the employer must take all "measures which are necessary according to experience, applicable according to the current state of technology, and appropriate to the conditions of the business" (Art. 328 OR).An employer who, in the current situation, sends his employees on business trips, thus exposing them to an increased risk of infection, violates his duty of care, especially if they become infected.The consequence of breach of the duty of care is the liability of the employer.It is therefore recommended to refrain currently from business trips, especially to countries/ cities with a large number of casualties as long as high risk of getting infected remains. Meetings should be replaced by conference calls. The situation should be reviewed on a regular basis.Our independent lawyers support you as employer or employee around this topic.