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CH-D Wirtschaft 2020, December 2020 Working from home and expenses in Switzerland - an overview

Since March 2020 until today, due to the Covid-19 pandemic, an unprecedented amount of work has been done from home (working from home). According to estimates, around 30% of the people employed in Switzerland performed this type of work during the lockdown. Certain industries still adhere to working from home to this day. Moreover, with the tightening of the relaxed measures, many employees are once again returning to working from home. With a view to Swiss labor law, the following is a brief concise overview of "Expenses" and how the employer should handle its employees in the working from home situation.

Approved expense regulations

In Switzerland, employers often have their expense regulations approved by the competent tax authorities; this simplifies the administrative work with the authorities for both the employer and the employees. For the most part, these regulations are identical to the model regulations drawn up by the Swiss Tax Conference SSK. For purely pragmatic reasons, many employers use these model regulations and have them approved by the cantonal tax authorities. Only the model regulations for non-profit organizations of the SSK provide for a regulation. These regulations stipulate that "for other expenses such as parking fees, telephone charges, stamps as well as for the use of private facilities such as office space and office equipment", an annual lump-sum expense allowance of a maximum of CHF 1,000.00 may be paid. If you currently lack such provisions, they must be adapted. How are expenses regulated in the Code of Obligations?

Expenses, tools and materials, vehicles

The legal regulation of the individual employment contract (in the Swiss Code of Obligations, OR) divides the colloquial "expenses" (i) into the expenses in general (Art. 327a OR), (ii) in the work equipment and material (Art. 327 CO) as well as (iii) in the use of a vehicle for business purposes (Art. 327b CO).

(i) The employer shall reimburse the employee for all expenses necessarily incurred in the performance of the work. The expenses to be reimbursed are those which a diligent employee would have considered necessary for the performance of the work. In addition, the expenses must be related to the performance of the work and must have been incurred as a result thereof. This includes travel, meal and overnight expenses incurred in the course of the work as well as entertainment expenses (invitations within the usual, reasonable scope) and small customer gifts. If contractually agreed or provided for by a collective labor agreement, lump-sum compensation may also be agreed. These (genuine) lump-sum expense allowances cover on average the actual necessary expenses over a correspondingly long period (e.g. 12 months).

Moreover, excessively generous lump-sum expenses, so-called non-genuine lump-sum expenses, are deemed to be hidden wages and are also owed if the employee is released from work.

(ii) The equipment and material required for the performance of the official duties must be made available to the employee, unless otherwise agreed or customary. This includes special work clothing, a laptop, a cell phone or the usual office infrastructure or the equipment required to perform the job. If the employee provides these himself/herself, he/she must be adequately compensated, unless an agreement or customary practice provides for no compensation. Such a practice (which, incidentally, is hardly ever found) has so far been found among cooks with regard to their knives.

(iii) For the use of a vehicle in the performance of the employee's duties, the employee shall be remunerated for the usual expenses for operation and maintenance in accordance with the use (use, tires, service, cleaning, maintenance, etc.), insofar as the use takes place with the consent of the employer. In the case of a vehicle belonging to the employee, public charges (taxes), the premium for liability insurance and appropriate compensation for wear and tear are also owed. Usually, lump-sum payments per kilometer are provided for, which also take wear and tear into account. In order to keep the damage manageable, especially in the case of accidents, it is advisable to have a contractual obligation to provide comprehensive insurance for privately used vehicles.

Place of work: Home office

It is permissible to point out that, in principle, work must be performed at the previous, usual place of work performance and the employer may not unilaterally and immediately assign another place of work to the employee. In the absence of corresponding provisions in the employment contract, an abrupt change of the place of work is not permitted. Exceptionally and in justified cases, such as in the case of a pandemic, a corresponding temporary change of the place of work may be indicated. Which expenses are to be reimbursed by the employer to the employee if the work is performed in the home office? Depending on whether the home office is at the employee's request, whether the employer allows this option or whether there are special circumstances (pandemic), there are different answers.

Voluntary working from home

The employer is not obligated to grant the employee the opportunity to work from home. If the employer wishes to comply with this request, it may allow working from home. If the employee has a workstation available on the employer's premises, it can be agreed that the employer does not have to reimburse any expenses relating to the home office (increased electricity costs, rent, compensation for use of chair, desk, etc.).

Required working from home

If working from home is ordered, the employee must be reimbursed for expenses and appropriate compensation for tools and materials. Since the costs of individual expenses or their effective proportion for the provision of work (increased electricity costs, share of Internet use for work, etc.) or their calculation are hardly realizable, a lump sum for the same suggests itself. Annual lump sums of CHF 200.00 to CHF 1,000.00 for the payment of these expenses can be found. In addition, employers often provide office chairs and the necessary IT equipment (laptop, screen, keyboard, mouse, etc.) to ensure ideal conditions for work performance and to prevent employees from having to use their private devices and private infrastructure. In addition, the employer also fulfills its duty of care and complies with the health and safety regulations in accordance with the Labor Code, in particular with regard to seating.

Working from home during the lockdown and afterwards

Due to a lack of rulings, it is currently unclear whether the expenses incurred as a result of home office work during the lockdown must be reimbursed. The tendency is that they do not have to be reimbursed.

As mentioned above, the expenses must be related to the performance of the work and must have been incurred as a result thereof. An example of this is Internet access, which - if already available - was not acquired in connection with the performance of the work. In this respect, these expenses were not incurred by the employee as a result of the work and do not generally entitle the employee to compensation for expenses.

With regard to home office work after the lockdown has been lifted, it is advisable to create clear regulations (voluntary or ordered home office) and to make corresponding adjustments to the working conditions and to provide work equipment and material or to pay corresponding compensation.

Health protection and working hours

The relocation of the place of work gives rise to further questions, which are addressed below as a non-exhaustive selection. Questions of data protection and possible professional duties will not be discussed.

As already mentioned, the employer has the responsibility even in working from home situations to observe the provisions of the Labor Act (in particular health protection, working hours and rest periods, prohibition of work on Sundays, public holidays and at night, recording of working hours) and inform the employees that they must also comply with these provisions when working from home. If the employer becomes aware of violations of these provisions, it must take action and, if necessary, revoke the permission to work from home so as not to violate its own duty of care.

Cross-border commuters: watch out!

For employees who do not reside in Switzerland (cross-border commuters), home office work raises social security and tax issues for the Swiss employer that should not be underestimated and can have considerable financial consequences. Insofar as the employee in his or her country of domicileis "substantially" gainfully employed (cf. Art. 13 Para. 1 Letter a Vo 883/2004), he/she is subject to the social security authorities of the country of residence. A workload of more than 25% is considered to be a substantial activity. A cross-border commuter with a 100% workload can therefore work a maximum of one working day in the home office. However, the mandatory employee protection regulations of the country of residence must always be observed.

It should not be disregarded that with a permanent, substantial provision of work from the foreign home office, the question of a permanent establishment abroad can suddenly become topical and (unintentionally) taxes and duties (profit, value-added or sales tax, etc.) are owed in the employee's country of residence. At present, the authorities seem to be holding back due to the extraordinary situation.

Conclusion

As can be seen from the above, in the case of working from home it is advisable to adapt the existing special regulations and to conclude an agreement with the employee in order to create clear conditions and to comprehensively regulate important aspects of working from home in addition to the expenses.