Navigating Legal Challenges of Remote Work

Basic Considerations

The term "home office" lacks a general legal definition. In general, home office describes a work model where employees fulfill their work duties at their own home instead of at the company's office. This can be either temporary or permanent.

The pros and cons of home office are frequently debated. Supporters argue that it contributes to a balanced work-life balance. Many small and medium-sized enterprises benefit from financial savings due to the elimination of office spaces. On the other hand, opponents of home office miss the direct and fast communication with colleagues and supervisors. However, one thing is certain: the old work model in traditional office spaces is gradually fading away.

Although efforts are being made to address this, there are currently no comprehensive legal regulations for the home office model. This could lead to dissatisfaction among employees and unexpectedly high costs for employers. To avoid misunderstandings and uncertainties, it is advisable to define and document some points for home office work as a supplement to the employment contract.

Working hours and social insurance

Working hours, particularly in relation to social insurance obligations, are a sensitive issue, especially for cross-border workers. We explain briefly using the following categories.

Home Office within Switzerland

If an employee is working from home within Switzerland for a Swiss company, the situation is clear. Employers are not currently obligated to allow home office work. If they grant this voluntary benefit to their employees, they can limit the home office working hours to a specific percentage through their right to issue directives.

Home Office outside of Switzerland

For an employee working for a Swiss company but residing within the EU or an EFTA member state, the situation is different. From a social insurance perspective, employees who work more than 25% of their total working time in home office must pay their social contributions in their home country. This consequently leads to higher social contributions for the Swiss employer. This can be avoided by limiting the home office working hours to below the aforementioned 25%. This regulation does not apply to civil servants in general.

Defining Overarching Regulations

Apart from social insurance limitations, it is advisable for employers to define overarching regulations regarding working hours, which apply in addition to individual employment contracts (legal basis according to Articles 319 et seq. CO). This is particularly important with regard to legally established regulations regarding working hours and rest periods. The employer is obliged to provide evidence of these. By drafting a simplified working hour regulation in writing, employers can avoid precise documentation requirements.

Costs and Expenses during Home Office Work

The most frequently asked questions concern who is responsible for the costs of work materials, etc. Many employers provide a laptop and a business mobile phone for use in home office. But what about additional costs? Who pays for work materials? Who covers long-term expenses such as increased energy consumption or internet costs?

The answer to the cost question can generally be categorized.

Voluntary Home Office

If the employer provides a workstation and necessary work materials at the company premises but the employee voluntarily chooses home office, there is no fundamental right to financial support. However, it is advisable for employers to formulate a written commitment for the use of private devices and work materials. In case of doubt, Article 327 CO may come into effect, which guarantees adequate financial support for the use of private work equipment.

Mandated Home Office

The situation is different for mandated home office work, for example, because the employer cannot provide a workstation. This case is regulated in favor of the employees in Switzerland. Accordingly, all necessary work equipment must be provided by the employer.

Home Office in Exceptional Circumstances and Emergencies

What happens if the employer has to mandate home office work due to legal directives? The question of cost coverage in this case is currently being hotly debated. While there are already recommendations for employers, they are mostly still to be approached with caution. There is currently no consensus among decision-makers on this point. Thus, the recommendation of the employers' association clashes with the opinion of labor lawyers and decisions of the Federal Supreme Court.

There is thus no general, legal regulation regarding exceptional situations. In case of doubt, the court decides on an individual basis. Until there is a clear, legal guideline, many employers voluntarily provide a subsidy, for example, through a fixed amount. However, this is not currently mandatory.

Liability during Home Office Work

Whether it's computer viruses or external damage to work equipment, incidents can happen quickly. Unfortunately, we cannot answer the liability question in a blanket manner, as it depends on the individual case. For example, if it is a negligent damage or subject to assessable risk? Legal bases regarding various liabilities can be found in detail in the Swiss Code of Obligations (including Articles 321e, 41 et seq., 55, 97, 101 CO). For mutual basic protection, it is advisable to define home office tasks and data protection-relevant points in a written agreement, such as the handling of sensitive data.

Disruptions

What happens if the power or internet fails? Although the employee is legally obliged to provide a functional work environment, they are not liable if there are unforeseeable disruptions. In this case, they continue to be paid for the time as usual under the obligation to pay wages. However, the employer has the right to temporarily either send the employee back to the company premises or assign them other tasks.

Health

The employer is obligated to prioritize the health of their employees and to ensure that regular working hours, breaks, and the Sunday rest are observed, and night work is prohibited. Furthermore, it is advisable to establish regulations regarding the workplace and to support the employee if necessary. Non-compliance with occupational safety regulations can have far-reaching consequences.

Conclusion

The home office work model can definitely be a win-win situation for both parties. Nevertheless, especially as an employer, it is important to have a strong specialist lawyer by your side in case of emergencies. They have the necessary expertise, keep an eye on the changing legal situation, and advise you comprehensively. GetYourLawyer supports you in finding a lawyer who suits you and your case. Simply submit your request conveniently online.