Drafting a tailor-made Work From Home policy
We were honored to be invited to participate in the webinar “Working From Home: our new normal?” organized by the Association of Corporate Counsel Europe. This sharing of experience and knowledge led to an insightful panel discussion. Sara Dousset, Counsel at MANGEAT, presented the legal framework concerning work from home in Switzerland.
The key insights below reveal the complexity and remaining uncertainties of this subject and list some of the challenges employers will need to address to implement long-term work from home in their companies.
Drafting your work from home policy
A proper work from home policy has the advantage of dispelling some of the uncertainties that may exist in law. It is necessary to guarantee the implementation of the employer’s duties towards the employees remotely and to safeguard the company’s interests. Companies should consider including several elements in their policy and should keep in mind that a policy should always be tailor-made for the specific business needs.
The following list of questions is by no mean exhaustive but will help you to see the challenge of drafting a work from home policy through different lenses.
• Who is concerned by the work from home policy?
• How does the position of an employee in the company affect his/her right and ability to work from home?
• How often will the employees work from home?
• Is work from home mandatory or discretionary?
• Does the policy create a right to work from home? Is it reversible?
• How will we fulfill our duty to protect our employees’ health?
• How will we prevent overwork, work at night or on Sundays?
• How will we monitor their hours while respecting their privacy?
• What contribution, both material and financial, do we need to allow our employees to work from home?
• How can we ensure confidentiality and security of data?
• How may work from home affect the legal status of cross-border workers?
While remote work is based on trust and flexibility, Swiss law requires employers to monitor the working time of each employee by recording working hours and prohibiting work certain days or hours. Companies have to find the appropriate balance between their duty to monitor working time and the respect of their employees’ privacy.
Depending on the discretionary or mandatory nature of remote work and on the rules provided in the policy, employers have different levels of duties to provide equipment to their employees and to reimburse supplementary effective fees implied by work from home. Moreover, while the use of private equipment may be an option, security issues and data protection may plead in favor of professional equipment provided by the company.
Frontier work may limit work from home
The working place is relevant for social security and tax affiliation, as well as for the jurisdiction and the law applicable to the employment agreement. At a certain frequency, work from home in another State may lead to a shift of system and applicable rules. Uncertainties created by such shifts should be avoided in the interest of both employees and employers.
Preparing for the post COVID-19 era
As of the time of writing this article, most countries and jurisdictions recognize the extraordinary nature of the COVID-19 pandemic and have agreed to a legal status quo with regard to the most complex legal consequences we mentioned above.
But as the sanitary situation improves, and as many employers discovered the benefits of having employees working remotely, a clearer legal framework will emerge.
To think through these challenges, we encourage you to reach out to our Counsel Sara Dousset. Working at the intersection of Employment Law, Data Protection Law, and Health Law, she can guide you through the process of drafting a tailor-made work from home policy for the new era that is emerging.