What do I need to consider as a business owner during the COVID-19 crisis?

With the rapid spread of the coronavirus, questions arise for the day-to-day business of a company in various ways. In Switzerland, small and me-dium enterprsies (SMEs) provide about two thirds of all jobs and act as a buffer for the economy and the labour market. The challenge now is there-fore to bridge this difficult situation. This is being done primarily through short-time working and owner-managed companies, and by ensuring li-quidity. In addition, there are aspects of contract law which must be taken into account at present.

So, what can you do for your business?

We have answered the most fre-quently asked questions from SME owners and managers hereinafter:

I. EMPLOYMENT LAW

May or must I send my employees to home office?

Based on the duty of care (OR 328 para. 2), the employer must take reasonable measures to protect the health of the employees. The employer must ensure that employees are able to comply with the recommended hygiene and conduct measures (washing hands, keeping distance). The employer must also protect particularly vulnerable persons, e.g. by allowing them to carry out their work from home (home office) wherever possible. If the particularly exposed person can only work on site, the employer must ensure that the hygiene and conduct measures can be observed. If this is not possible, these persons have the right to stay away from work. Compulsory unpaid leave is void.

Can I force my employees to take their holidays?

In principle, employees’ interests must be taken into account when taking their holidays. A unilateral holiday order (compulsory holiday) is only possible if this is communicated sufficiently early for the employee to be able to organise his or her holiday. As a rule, 3 months is assumed, but under certain circumstances it is justifiable to assume a shorter order period due to the current situation.

Can I cancel holidays already granted to my employees?

In principle, the employer can also order a ban on holidays, as she can deter-mine the time of the holidays. The employee must be heard and his or her wishes must be taken into account. However, postponement of holidays already agreed upon is only justified for serious reasons. Company holidays are also conceivable, although these must be announced well in advance.

What is “short-time work” and can I, as a business owner, also ap-ply for short-time work?

Short-time work means the temporary reduction of the contractual work-ing hours ordered by the employer, whereby the contractual relationship under labour law is maintained. Short-time work compensation (KAE) provides appropriate compensation for an eligible loss of work. This is intended to prevent unemployment and to preserve jobs.
The group of persons entitled to compensation for short-time work has been extended since March 20, 2020 to include the following persons:
– to persons in the service of an organization for temporary work and employees in fixed-term employment
– to persons in an apprenticeship relationship (apprentices)
– to employer-like employees.
“Employer-like employees” are defined as persons who, in their capacity as partners, as those who have a financial interest in the business or as members of a supreme decision-making body of the business, deter-mine or can significantly influence the decisions of the employer. Ac-cordingly, managing directors and owners of a GmbH or AG can now also apply for short-time work. Collaborating spouses and registered partners are also entitled, but limited to a lump sum.

II. BRIDGING LOANS

How much credit can I apply for for my business and where?

A guarantee scheme has been set up to provide bridging loans from banks to SMEs (sole proprietorships, partnerships, legal entities) con-cerned, building on existing structures of guarantee organisations. Af-fected companies can apply for bridging loans from their respective banks up to a maximum of 10% of their annual turnover up to a maxi-mum of CHF 20 million. SMEs that only have an account with Post-Finance can submit their application there. Certain minimum criteria must be met, in particular the company must declare that it will suffer a substantial loss of sales as a result of the corona pandemic. Loans of up to CHF 500,000 will be paid out unbureaucratically within a short period of time and 100% guaranteed by the Confederation. The interest rate is set at zero percent. The loan application is available at https://covid19.easygov.swiss/. Bridging loans that exceed the amount of CHF 500,000 require a more comprehensive bank examination.

III. CONTRACT LAW

Can I cancel my contracts due to COVID-19?

First check whether your contract contains a so-called “force majeure” clause. Such a clause provides for legal consequences in the event of force majeure. Depending on how it is worded, the services of both parties are cancelled or one party has the right to fulfil the service at a later date (if fulfilment is still possible then).
If there is no such clause, you may refer to the general principles of Swiss law. A company can terminate a contract if the delivery has become impossible. Permanent contracts can also be terminated at any time for good cause. The reason must be so important that the continuation of the contract is unreasonable for the terminating party, taking into account all circumstances, and the termination must be pronounced without undue delay. If performance is still possible at a later date and no force majeur clause has been agreed, it is advisable to contact the other party first and try to find a solution acceptable to both parties. This is especially important with business partners with whom one would like to con-tinue the good business relationship after the crisis.

ANY FURTHER QUESTIONS?

Simply contact us under info@lawfy.ch and tell us your questions. We are happy to legally support your business in this difficult times and provide you with an offer for an afordable and fixed price.