New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The Portuguese Labour Code established the legal regime for remote working, in particular teleworking, in 2003. This provided employers with a general framework for this kind of arrangement. During the covid-19 pandemic and its successive lockdowns, a vast array of legislation on telework was issued, given the specificity of the situation.

Back in March 2020, the teleworking regime could be unilaterally imposed by an employer or requested by employees, without the need for an agreement of the parties provided that it was compatible with the employees’ functions. Independent contractors were excluded from the scope of this regime.

Due to the evolution of the pandemic, it was then determined that teleworking should be mandatory, regardless of the employment relationship (including contractors), whenever employees’ functions allowed it. In this context, measures were also adopted to promote the compulsory implementation of teleworking within the scope of civil servants, whenever this was compatible with the functions being performed.

With the reduction in the number of covid-19 cases, in summer 2020 teleworking was no longer mandatory and the legal regime foreseen in the Portuguese Labour Code was solely applicable.

However, the increase of covid-19 infections led to the adoption of new measures in October 2020, which determined the promotion of teleworking whenever the nature of the activity allowed it. Considering the number of outbreaks, it quickly evolved to a point when teleworking became mandatory in the regions with a higher risk of infection.

It was only in November 2020 that teleworking was established as mandatory for companies that were the final users or beneficiaries of services provided by independent contractors, service providers and temporary employees.

After Christmas 2020 and with the new lockdown, teleworking once again became mandatory across the country. Despite a government announcement in March 2021 that teleworking would be mandatory until the end of the year, due to the success of the national vaccination programme teleworking ceased to be mandatory from 1 August 2021.

Council of Ministers Resolution No.181-A/2021 decreed mandatory teleworking between 25 December 2021 and 9 January 2022, which was then extended until 14 January 2022.

Other than this period of mandatory teleworking, at the end of 2021 Law No. 83/2021 was passed, which entered into force on 1 January 2022. This law modified the teleworking regime, introducing several changes to the Labour Code and to Law 98/2009 on work accidents and occupational diseases.

This new law states that provisions on equipment and systems; organisation, direction, and control of work; special obligations; privacy; and health and safety at work apply to all situations of remote work without legal subordination, but with economic dependence. The extension and scope of such obligations are unclear, but it is doubtful that this new teleworking regime was intended to accommodate “gig economy” workers and other independent contractors. It is more likely to have a residual character, to prevent situations where it is unclear if one is dealing with an employment contract or a service provision (eg, home workers), as this may change crucial rules on privacy or health and safety.

Last updated on 08/07/2022

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Switzerland

  • at Lenz & Staehelin

Swiss labour law, in particular the Swiss Code of Obligations, does not contain any specific rules regarding remote working. Remote working is governed by the general rules of labour law and, in particular, by the will of the parties to the employment contract (ie, employers and employees).

However, the Federal Act on the Statutory Principles for Federal Council Ordinances on combating the Covid-19 Epidemic (covid-19 Act) provided the Federal Council with a legal basis to implement remote working, should the need arise. The Federal Council made use of this provision and made remote working mandatory from 18 January 2021 to 26 June 2021 and again from 20 December 2021 onwards. In theory, mandatory remote working is set to end on 24 January 2022, but this measure could be extended if the Federal Council deems it necessary.

The remote-working obligation concerns all workers, provided that remote working was possible and did not lead to exorbitant costs. Employers are responsible for making sure that appropriate organisational and technical measures were in place.

Additionally, even between 26 June 2021 and 20 December 2021, when remote working was no longer obligatory, but rather merely recommended, an exception existed for employees at risk, including pregnant individuals and persons who cannot be vaccinated for medical reasons.

It also should be noted that on 10 June 2021, a motion was introduced in Parliament that would enact provisions covering remote working (eg, definitions, scope and issues related to health and safety and work and rest periods); this motion has been sent to committee for an initial review.

In conclusion, except for the Federal Council's decree requiring remote working between January and June 2021 and from 20 December 2021 onwards, no specific legal provisions govern remote working in Switzerland. 

Last updated on 20/01/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Employers are required to respect the general Swiss data protection principles and rules. In particular, the Swiss Code of Obligations (SCO) states that the Federal Act on Data Protection (FADP) applies to the handling of employer personal data. The term "personal data" is defined as any information relating to an identified or identifiable person (individuals and companies).

Employers must ensure the security of the data they process. They must take appropriate organisational and technical measures to protect personal data against unauthorised processing or access, such as accidental or unauthorised destruction, loss, technical errors, falsification, theft, unlawful use, alteration, copying or any other undue processing. Moreover, employers also must control access and operations undertaken by employees.

One particularity of remote working is that employees' workstation and business data are located off sites. Meaning that third parties potentially could access this data.

To prevent data protection breaches, employers must institute appropriate technical and organisational measures and raise employee's awareness of data protection risks. These measures may include securing information systems, setting up authorisations and limiting access to concerned employees, and using a VPN. In addition, employees also should be made aware of the risks and procedures through in-house training and user manuals for the IT and security systems.

Last updated on 30/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

In terms of privacy, the teleworking regime establishes that employers must respect employees’ privacy and time with their families, as well as provide them with good working conditions, both physically and psychologically. This was made even clearer with the new teleworking law.

Whenever remote working is carried out at an employee's home, visiting the workplace should only be necessary to check work performance or equipment and can only take place during the employees’ working hours, in the presence of the employee or a person designated by the employee, with prior notice of at least 24 hours and the employee’s consent.

Regarding limits on employers monitoring employee activity, the Portuguese Labour Code prohibits the use of remote surveillance in the workplace to monitor the professional performance of employees.

Especially during the pandemic, when remote working and teleworking, in particular, were normalised, concerns arose regarding the limits of monitoring and how to adequately safeguard employees’ privacy.

On 17 April 2020, the National Data Protection Commission (CNPD) issued guidelines on remote control during teleworking, especially the need for monitoring working time and the fact that, in several companies, employees were using their own devices to work.

In these guidelines, the National Data Protection Commission clarified that, regardless of who owns the work equipment, under the teleworking regime employers retain powers to direct and control the execution of work by employees. However, since there are no special provisions on remote control during teleworking, the National Data Protection Commission believes that the general rule prohibiting the use of remote surveillance fully applies.

Therefore, technological solutions for remote monitoring of employee performance are not allowed. For example, software that, in addition to tracking working times, records websites visited; tracks equipment locations in real-time; monitors the use of peripheral devices; captures screenshots; records when access to applications is initiated; controls the document being worked on; or records the time spent on each task are all prohibited.

Please note that, during the pandemic, when remote working was most widespread, the National Data Protection Commission and Trade Unions reported a significant increase in employees’ complaints about illegal monitoring taking place.

Also, since Portuguese labour law imposes an obligation to register working time (eg, start, pauses, end of work time), in teleworking this can be done through technological solutions. Applications specially designed for this purpose are allowed provided data protection principles are respected.

Concerns regarding these technological solutions were partially addressed by the new teleworking law, which states that when controlling the performance, the employer must respect the principles of proportionality and transparency, notably the employer cannot impose a permanent connection on employees through image or sound.  Also, it is forbidden to capture and use images, sound, keystrokes, browsing history, or other information that may affect the employee's right to privacy.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

According to Swiss legislation, control or surveillance systems that are primarily intended to monitor the behaviour of employees are prohibited if they are detrimental to the health or well-being of employees. Health is understood in its broad sense and also includes mental health. There are no strict limits as to what surveillance is, but measures must always be proportional.

The European Court of Human Rights, whose Convention has been ratified by Switzerland, has laid down seven guiding principles for contracting states concerning legal surveillance of employees. These principles relate to information, the scope of surveillance, legitimacy of the reasons for surveillance, use of the least intrusive means, the consequences of surveillance, guarantees offered to employees and the principle of trust.

As an example, the Swiss Federal Supreme Court, which is the highest judicial authority in Switzerland, has ruled that it is unlawful for employers to install spyware without employees' knowledge to check whether they are using the internet for private purposes. In that case, the court held that the system was capable of exerting control over employees' behaviour, which is prohibited. It also held that the surveillance was disproportionate since the employer simply could have blocked access to certain websites.

The above-mentioned principles must also be complied with when it comes to remote working, which does not differ fundamentally from onsite working.

Last updated on 30/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Yes, under the new teleworking law employers are responsible for providing employees with the equipment and systems required for the performance of their work and employee-employer interaction. The teleworking agreement must indicate whether such equipment is directly provided by the employer or acquired by the employee with the employer’s approval regarding its characteristics and prices.

Furthermore, employers may define the usage conditions of the equipment in the teleworking agreement or the company's internal regulations; if the employer does not, it is assumed that there are no limits to the use of such equipment.

As mentioned above, under the general provisions on teleworking, employers should pay any extra costs related to teleworking. As specified by the new teleworking law, employers will fully reimburse all additional expenses that the employee incurs as a direct consequence of acquiring or using the equipment and computer or telematics systems necessary for the performance of the work, which includes any additional energy and internet costs, as well as the maintenance costs of the equipment and systems. Such reimbursement is considered, for tax purposes, a cost for employers and does not constitute income for employees.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

The SCO distinguishes between work equipment or materials and work expenses.

Work equipment and materials, such as phones or laptops, must be provided by employers when they are necessary to carry out the work. However, contracting parties can decide among themselves that employees will provide the work equipment or materials. In such a case, employees are entitled to an appropriate allowance, unless otherwise agreed upon. Work expenses, such as electricity, rent, a telephone or internet plan, generally must be borne by the employer, provided they are necessary to carry out the work. It is not possible to derogate from this rule to the detriment of employees, and employers cannot pass some or all of the costs to employees.

There are several possibilities when it comes to passing costs along to remote workers; employers can provide work equipment and materials or employees can use their own private devices. Instruments and materials that are used for both private and professional purposes are not deemed necessary, since it is considered that employees would have acquired these instruments or materials in any case, even if they are used professionally. This reasoning also applies to private furniture, at least when the exercise of the professional activity does not require the purchase of additional furniture.

Regarding expenses, (eg, rent for private office space or extra rooms), a distinction should be made between three cases: (i) forced remote working for the employee and the employer due to external circumstances (eg, covid-19); (ii) remote working imposed by the employer on the employee (eg, because there are no offices available for the employee); and (iii) remote working agreed upon between the employer and the employee for reasons of personal convenience.

In the first case, which usually occurs when there are extraordinary and unforeseeable circumstances, such as the covid-19 pandemic, the employer must reimburse the employee for expenses incurred to carry out work from home (eg, extra costs for business telephone calls). However, the employer does not have to pay employees’ fixed costs such as rent, internet or a private telephone package.

In the second case, expenses incurred to carry out work from home and which the employee usually does not incur must be borne by the employer. This opinion was followed by the Swiss Federal Supreme Court, which ruled in 2019 that an employer had to pay a portion of an employee's rent because it did not provide the employee with a workspace. This solution also should apply to remote working carried out at the request of the employer.

In the third case (when working from home is the employee's choice), the employer has the right to waive, in writing, compensation for expenses related to remote working, as the remote working costs result from the employee's choice and are not imposed by circumstances or by the employer.

In conclusion, the question of equipment and materials, as well as the question of expenses, depends on the will of the contracting parties and on the situation in which remote working is carried out. Therefore, a case-by-case examination is necessary to determine who bears remote-working expenses.

During the mandatory remote-working period decreed by the Swiss Federal Council from 18 January to 26 June 2021, employees were not entitled to any reimbursement of expenses, since mandatory remote working was a temporary injunction from the authorities. However, as the decree did not contain any provisions covering work equipment and materials, the general provisions of the SCO applied.

Last updated on 30/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The analysis of potential issues associated with cross-border remote working depend on whether employees are working in Portugal or abroad and if there are one or multiple employers involved and where they are located.

However, cross-border remote-working arrangements mainly raise issues regarding the definition of applicable law. The correct definition of the applicable law allows for compliance with labour and social security obligations that otherwise, if breached, pose significant risks to employers.

Even if there is an agreement through which the parties choose the applicable law, a set of mandatory provisions of Portuguese labour law would still apply if the work is mainly performed in Portugal, namely in key areas such as termination, health and safety obligations, and insurance for workplace accidents. Failure to correctly identify the applicable law may have serious consequences, for instance, employers may be entirely and solely responsible for all liabilities deriving from a work accident.

Furthermore, if in a given case the Portuguese labour law applies to the cross-border remote-working agreement, employers have to bear in mind that there are some difficulties regarding the definition of workplace and work time in connection with remote working, which can raise challenges when implementing these schemes.

Besides the above, cross-border remote working may also raise questions regarding work permits.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Remote working has labour, social security and tax law repercussions for employees whose contractual place of work is Switzerland, but are resident in and work remotely from an EU border country. Issues related to remote working from outside the EU are not discussed.

First, regarding labour law, remote working creates a second place where employees carry out their activity. In the event of a dispute, the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provides that employees may initiate proceedings in the state where their employer has their residence or seat, or in the state where they habitually carry out that work. According to EU case law, an employee's residence can be considered their habitual place of work if they carry out 60% or more of their professional activity there. This criterion only can be excluded if it is shown that based on qualitative criteria, another place is the centre of employees' activities. Swiss case law is less specific than EU case law and only refers to the place where the centre of the activity is located.

Furthermore, remote working also can have repercussions on the law applicable to the contract. European Regulation 593/2008 on the law applicable to contractual obligations (Rome I) indicates that the contract is governed by the law chosen by the parties. However, if a case is brought before a court in the EU, this legislation provides that the choice of the parties cannot override the mandatory employee protection rules applicable in the state where the employee habitually work. Therefore, there is a risk that the law applicable to the contract (eg, Swiss law) could be replaced by the law of the state in which an employee lives.

Second, concerning social security law, employees are usually subject to the social security system of the place where the activity is carried out.  Thus, if employees carry out the entirety of their activity in Switzerland, they are subject to Swiss social security. Conversely, if they perform their entire activity in the EU, they are subject to the social security system of that state. According to European Regulation 883/2004 on the coordination of social security systems, if the activity is carried out in multiple states (eg, partly at the employer's Swiss offices and partly in their state of residence), employees are subject to the social security system of the state in which they reside if they carry out a substantial part (25% or more) of their activity there. Otherwise, employees are subject to the Swiss social security system.

Third, remote working also can have an impact on tax law. In general, taxation in Switzerland is based on residence. However, a person who has neither their residence nor a habitual abode in Switzerland nevertheless may be taxed based on an economic connection with Switzerland, such as the exercise of a gainful activity. Thus, employees who carry out their entire professional activity at home by working from home (outside Switzerland) would have to pay taxes in that state, as a condition for carrying out gainful activity in Switzerland is a physical presence in Switzerland. Employees who carry out part of their work abroad are taxed proportionally in Switzerland and the other states.

The covid-19 pandemic led to some derogations from the above principles. 

In terms of labour law, the widespread remote working connected to the covid-19 crisis is considered to be temporary and thus does not provide a basis for an employee’s state of residence to be considered their usual place of work. Consequently, employees who carry out a substantial part, or even all, of their professional activity by working from home due to covid-19 are not deemed to be habitually working from home within the meaning of the EU regulation, provided that this situation remains temporary.

In terms of social security law, the applicable system is not affected by covid-19-related restrictions. Switzerland has agreed with neighbouring countries that an increase in the time spent by employees of a Swiss company in their state of residence due to the increase in remote working shall have no impact on social security. A flexible application of social security rules has been agreed upon with Germany, Italy, Austria and Liechtenstein and is effective until 30 June 2022. For France, this is effective until at least 31 March 2022. For other states, in principle, this also will apply until 30 June 2022.

In terms of tax law, Switzerland also has agreed with certain neighbouring countries that an increase in the time spent by employees of a Swiss company in the territory of their state of residency due to the increase in remote working shall have no tax impact. The agreement with France was signed on 13 May 2020, and the agreement with Germany was signed on 11 June 2020. These agreements remain in force until at least 31 March 2022. The agreement with Italy, dated from June 2020, is still in force and is tacitly extended on a month-to-month basis provided that neither country terminates it.

Last updated on 20/01/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

The payment of salary constitutes one of the employers' main obligations under an employment contract. This obligation exists even in the case of remote working and, therefore, it is not possible to reduce salary due to remote working.

Regarding benefits, a distinction must be made between different types. For example, it could be considered that employers who provide a car or a transport pass to employees could waive this benefit or reduce it proportionally if employees carry out all, or part, of their professional activity from home. However, if employees are paid meal allowances, it may be more difficult to justify removing this benefit, although the situation is less clear in situations in which employers provides employees with free meals.

Last updated on 30/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, vaccination against covid-19 is not compulsory in Portugal, not even for so-called risk groups such as medical personnel or social workers. For the time being, employers cannot force employees to be vaccinated or ask them to provide information on their vaccination status; they can only generally recommend vaccination. Without the Portuguese parliament passing a law making vaccination compulsory, no private or public entity can force its employees to get vaccinated.

Furthermore, to implement a compulsory policy, employers would most likely have to obtain vaccination certificates from their employees, which would be unlawful under the provisions on privacy and health data protection established in the Portuguese labour law.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Generally speaking, employers must take measures to protect the health of employees. However, in principle, they are not entitled to require employees to be vaccinated, unless there is an overriding interest based on the principle of proportionality.

The State Secretariat for Economic Affairs (SECO) has stated that an employer can require employees to be vaccinated under specific circumstances, such as when there is an elevated risk of contamination that cannot be mitigated via other protection measures. Further, the employer must weigh the different interests (ie, the employee's private life versus the covid risk) for each individual case. Moreover, the SECO has stated that a company may not impose a general vaccination obligation.

If vaccination can be mandatory and if an employee refuses to be vaccinated, their employer could terminate the employment contract. That decision must be proportionate and must be based on the specific circumstances of the case.

Last updated on 20/01/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Employers cannot require employees to provide information regarding their health – namely but not exclusively regarding their vaccination – except when it is strictly necessary and relevant to assess their suitability for work and the stated purpose is provided in writing to employees. Please note that even in such cases, health data would be provided to the occupational doctor – ie, not directly to the employer – who in turn can only communicate to the company an employee's fitness to perform their role.

Therefore, it is unlawful to make entry to the workplace conditional on employees having an optional vaccine such as covid-19, both from a labour and a data protection perspective. Such behaviour can be deemed a very serious breach of labour laws, leading to penalties, orders to cease such conduct, and damages under general civil law principles.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Except in the abovementioned exceptional cases, employers prohibiting unvaccinated employees from working would be obliged to pay these employees their full salary, even though they did not perform their work.

Employers who have opted to implement measures requiring employees to present a covid certificate should use the Covid Certificate Check application to verify whether employees have a valid covid certificate. The Federal Data Protection and Information Commissioner (FDPIC) has said that employers should avoid keeping a list of employees with a valid covid certificate, or otherwise storing such data, as the employer could be considered to be processing sensitive personal data and thus subject to the rules set forth in the Swiss Data Protection Act (DPA). 

Further, the covid certificate can be presented for verification by the Covid Certificate Check application in either its original version or the "light version". With the original version, it is possible to see whether the employee was vaccinated, recovered from covid or received a test; the "light version" only shows whether the employee has a valid covid certificate. The FDPIC recommends the use of the "light version" in workplaces, as less personal data is visible.

Moreover, this information may not be used for purposes other than determining appropriate workplace protective measures and implementing a testing plan.

Last updated on 20/01/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, there are not.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

No. However, with cases of covid-19 on the rise, the question of whether people working in specific fields, such as the health sector, should be required to be vaccinated is hotly debated.

Last updated on 30/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

See question 9.

In addition to the rules for processing employee’s health data, from a personal data perspective, the processing of special categories of data (vaccination data qualifies as health data) is generally forbidden unless one of the exceptions foreseen in article 9 (2) of GDPR applies. Therefore, this processing would only be lawful if this data is necessary for preventive or occupational medicine or for assessing the working capacity of the employee.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Employers cannot access employee data related to vaccination status, and the processing of such data is not permitted.

Regarding the protection of other data, employers and employees based in Switzerland are subject to the FADP. Under that Act, personal data is any information relating to an identified or identifiable person. Health-related data is considered to be "sensitive personal data" and is subject to specific protections. Medical data, therefore, would be subject to the requirements for processing sensitive personal data.

Several principles guide the processing of data. The principle of lawfulness of processing states that personal data only can be processed lawfully. This means that such action requires a justifiable reason, which could be the consent of the subject, a predominant public or private interest or a legal provision. In the context of employment relationships, the validity of employees' consent as a justification is often called into question, given the unequal relationship inherent in any employment contract (thus preventing the employee from consenting freely).

According to the principle of good faith, it is not permitted to collect personal data without the knowledge and consent of the person concerned. Anyone who deceives that person is in violation of the principle of good faith. The collection of personal data and the purposes of the processing must be recognisable to the subject.

According to the principle of proportionality, only data necessary and suitable for the set purpose may be processed. In addition, according to the principle of purpose, data collected may only be processed for the purposes that were communicated at the time of collection, that arise from the circumstances or that are provided for by law. Finally, the principle of accuracy implies that the processor of personal data must ensure the data is accurate and, if necessary, correct data that is no longer accurate.

In addition, under certain circumstances, EU General Data Protection Regulation also may apply to Swiss companies. However, its general requirements and principles are similar to those of the FADP.

Last updated on 20/01/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

According to the Portuguese Labour Code, teleworking employees have the same rights and duties as other employees, namely concerning working conditions, health and safety, and medical care arising from work accidents or occupational illnesses. Employers must also be mindful of the isolation of remote employees by ensuring regular contact with the company and other employees.

Employers are responsible for the identification and management of risks in teleworking and on-site work alike. When addressing the health and safety risks of remote working, employers must pay particular attention to psychosocial risks and ergonomic factors.

Employers must organise, in specific and adequate terms, and with respect for employee privacy, the means necessary to fulfil their responsibilities regarding health and safety at work. Employers must provide employees with good working conditions both physically and psychologically; and carry out occupational health examinations before the implementation of the teleworking policy, and annual examinations thereafter to assess the physical and mental aptitude of employees to perform their work, the impact of the activity and the conditions in which it is provided on their health, as well as any preventive measures that may be appropriate.

Employees must give access to the place they telework to professionals designated by their employer to evaluate and control the health and safety conditions at work, at a previously agreed time, between 9am and 7pm, and within the employee’s working hours.

Employers must also keep insurance companies informed of the specific workplace of remote or teleworking, to ensure that their policy will cover any work accident that might occur.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

In general, employers must take necessary measures to protect the life, health and safety and personal integrity of employees. They must avoid demanding excessive effort from employees and may not burden them with work that could damage their health. Therefore, they have to organise workflow in such a way as to not overwork employees. They also have communication and training obligations, in particular, informing employees and instructing them on risk-prevention measures. Employers generally must ensure that employees' workplaces are properly designed, taking into account equipment, buildings and the working environment.

These measures also apply to remote working and employers are not relieved of their obligation to protect employees' health and safety when work is performed offsite. In the case of remote working at the employer's request, employers have to ensure that employees are provided with the necessary equipment to comply with these conditions or if necessary offer financial compensation for employees to make the necessary arrangements themselves. In any case, employers should ensure that employees are made aware of the health risks involved with remote working, in particular concerning the workplace layout working hours and rest periods.

Last updated on 30/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Before the pandemic, teleworking and remote working were rather infrequent, hence there was little guidance on what specifications should be considered in terms of health and safety at work when employees were not onsite.

When teleworking became mandatory during a large part of the pandemic, employers had to consider many new health and safety challenges: particular attention was paid to equipment and conditions at home, with many companies paying for office chairs, monitors, and other tools compatible with ergonomic standards. Also, due to the isolation and stress of successive lockdowns, employers enhanced their focus on mental health and well-being.

In terms of legal discussion, there was a significant debate around work accidents when employees are working remotely, due to the lack of specific provisions in the law.

With the new teleworking law, it was clarified that the legal policy for compensation for accidents at work and occupational illnesses applies to teleworking. The law considers the relevant ‘workplace’ to be the one chosen by employees to usually carry out their activities and ‘working time’ as all time during which, demonstrably, employees are working.

Last updated on 13/07/2022

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Switzerland

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When remote working first was decreed on 18 January 2021, employers had to act quickly to implement the remote-working obligation, while also protecting the health and safety of employees.

Thus, employers had to think differently about how to raise awareness among employees, especially concerning working hours and rest periods. Employers also had to ensure that employees were provided with adequate equipment and materials, such as a suitable office chair that was safe for their backs or a workroom that met the safety and hygiene standards set by the FOPH. In addition, the authorities also issued guidelines for employees.

Last updated on 20/01/2022

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

As far as Portuguese labour law applies to employment relations, health and safety obligations on employers are the same for employees working on-site, from home, remotely, or “mobile” employees, with the latter understood to be employees working in more than one place or travelling frequently as part of their job.

What differs is the evaluation of health and safety risks according to the specific circumstances of each employee (ie, even though the employers’ obligations are the same irrespective of the type of employee, the assessment and specific measures to be applied to ensure compliance will vary in accordance with the way each job is performed).

Last updated on 13/07/2022

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Switzerland

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In contrast to other legal systems, Swiss legislation does not recognise the concept of "mobile workers". Therefore, mobile workers are considered to be employees without a fixed place of work (ie, those who work in several different locations or who travel in the course of their work). "Workers based primarily at home" are employees who do not necessarily have a workplace provided by their employers, but who are mainly in one place, (ie, their home).

Swiss law does not contain different regulations for these two categories of workers.

However, in practice, employers' recommendations will differ based on the worker's situation.  It can be assumed that when employees do not have a fixed place of work, employers will have to take this into account more in their recommendations, since the employee has fewer possibilities for an "appropriate" workstation. Also, employers will have to be more attentive to the working hours of a "mobile worker". 

Last updated on 30/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

According to the Portuguese Labour Code, employers must provide good working conditions, both physical and mental. Health obligations should be understood holistically, encompassing both mental and physical health and wellbeing. Since these obligations apply to employers regardless of the type of employment relationship, they will also include teleworking and remote-working employees.

In practical terms, this implies that, when the health and safety services assess risks, they will identify and analyse those specific to the circumstance of not working onsite, such as stress, fatigue, or sedentariness.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

Employers are responsible for the health and well-being of employees, including their mental health. However, Swiss law does not provide a general definition of the protection of mental health. In any case, employers cannot be indifferent to the mental health of their employees. They have a duty to help, to reduce tensions, resolve relational conflicts, prevent harassment and protect employees from rumours and bullying. Wherever possible, employers must accommodate employees whose mental health is at risk so that they can continue to work, (eg, by moving the employees' workplace).

These obligations also apply to remote working.

Last updated on 30/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

During the pandemic, the government created a special and simplified lay-off system, aimed at maintaining jobs in companies that were totally or partially closed due to the imposition of the law. Under this system, employers could, in short, reduce the normal working time (daily or weekly) or suspend employment contracts.

Within this system, employers could reduce remuneration within certain limits: employees could earn at least two-thirds of their regular monthly remuneration, with a minimum amount of 635 euro in 2020 and 665 euro in 2021 and a maximum limit of 1,905.00 euro in 2020 and 1,995.00 euro in 2021.

Payments to employees were made by the employer, who received aid from Social Security corresponding to 70% of the costs. Employers were also exempt from social security contributions regarding employees under the simplified lay-off regime.

Other measures allowed for the reduction of salaries, namely extraordinary support for the progressive resumption of activity for companies with a temporary reduction of normal working times, which applied to companies not subject to facility closures, but that still had losses of 25% or more in a calendar month prior to the calendar month of the initial application or extension, compared with the same month of the previous year or 2019, or compared with the six-month average prior to that period.

Regarding the hours not worked under this scheme, employees were entitled to compensation of 80% of their gross pay paid by employers. If this sum represented a monthly amount lower than the employee's normal gross pay, the amount paid by Social Security would increase to cover the difference, capped at 1,995 euro.

Seventy per cent of the said compensation was borne by Social Security, with the employer responsible for the remaining 30%. Where the reduction in working time was more than 60%, Social Security support corresponded to 100% of compensation.

Please note that accessing these and other state support measures – not only labour and social security-based relief, but also some tax measures and tenancy benefits – meant employers could not terminate employment contracts based on collective or individual dismissal during the period they availed of said benefit and within 60 or 90 days after its end. Some support measures also forced employers to maintain current employment levels and limited, among other things, the right to terminate employment contracts by agreement (ie, in such cases, employers would have to repay the benefit that they were granted, either partially or entirely, depending on the situation).

Last updated on 13/07/2022

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Switzerland

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Regarding wages, authorities have extended the use of pre-existing "reduced working hour allowances". This measure is intended to avoid dismissals following a brief but unavoidable absence from work. According to the system now in place, under certain conditions, employers have the right to (fully or partially) reduce the working hours of their employees and apply for allowances for reduced working-hour allowances. Those allowances cover up to 80% of wages related to the reduced hours. The hours effectively worked still are fully remunerated by the employer.

The Swiss Federal Council has decided to keep in place a procedure for a simplified calculation of the allowances for reduced working-hour allowances until 31 December 2022.

In addition, employees infected by covid-19 and unable to work due to illness are entitled to the payment of their salary under the same conditions as for any other illness-related incapacity. In particular, the salary would not be paid if an employee voluntarily travels to an area at risk or disregarded basic rules of caution and hygiene. If employees are stranded abroad because the authorities ordered a quarantine or return flights were cancelled, employers may refuse to pay their salary.

Last updated on 20/01/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, unions in Portugal were not particularly focused on remote-working and teleworking employees or their working conditions and rights.

Nevertheless, during the pandemic, unions played an important role in shaping the contours and content of the special teleworking regime, namely through pressuring the government to address or clarify some key issues, such as the payment of meal allowances and other expenses to teleworking employees, but also to report some misconduct, such as illegal monitoring of teleworking employees.

Employers did not give unions a particularly relevant role in the adoption of covid-19 measures; the simplified lay-off regime meant there was a duty to consult with trade union delegates and workers’ councils, when applicable, but not to negotiate with the unions.

Last updated on 13/07/2022

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Switzerland

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Under pressure from unions, the Council restored protection for vulnerable individuals. These vulnerable employees now have the right to work from home. If employees are not able to carry out their work from home, employers may give them other tasks that can be carried out at home. If no tasks can be performed at home, these employees are released from their obligation to work and the employer must pay them their full salary. This protection is still in place at the time that this article was written.

In addition, the main employers' organisations in French-speaking Switzerland set up a remote-working agreement template in October 2020. This template was considered "insufficient" by the trade unions, because they were not consulted during its development. However, it is often used.

In February 2021, the Federal Personnel Association launched a petition demanding the right to work from home for people employed by the Swiss Federal Administration.

Last updated on 20/01/2022

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, this level of intervention regarding remote-working and telework arrangements is not available to unions.

At the most, unions can ask for information on general teleworking regimes that employers may wish to agree with employees under the general guidelines of the Portuguese Labour Code, since unions are entitled to be informed about decisions that are likely to trigger substantial changes in the organisation of work or employment contracts.

Nonetheless, please note that collective bargaining agreements may introduce specific terms regarding teleworking and remote-working regimes.

Last updated on 13/07/2022

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Switzerland

  • at Lenz & Staehelin

In general, there is no obligation to consult with unions if employers want to introduce remote working in the company.

If employers are planning to introduce forced remote working on a long-term basis, the implementation of this change would require a termination-modification (ie, a termination of the contract coupled with a new job offer).

Last updated on 30/09/2021