Just last month, we looked at the permissibility of mandatory vaccination in the workplace. Due to the situation at the time, we did not consider it permissible to impose a general vaccination requirement or to oblige employees to provide information about their own vaccination status. With regard to information on vaccination status, the framework conditions have now changed within a very short space of time – as has often been the case during this pandemic. Employers may now request access to employees’ Covid-19 certificates in certain situations.
Flavia Mattioz
Associate at Fricker and Füllemann Attorneys at Law
Studied at the University of Lucerne, graduating with a Master of Law (Lucerne) in 2019, not admitted to the bar.
Matthias Fricker
Attorney at law and partner at Fricker and Füllemann Attorneys at Law
Studied at the University of St. Gallen, graduating with a Master in Law (M.A. HSG in Law) in 2012, registered with the Zurich Bar Registry, member of the Zurich Bar Association.
Fabian Füllemann
Attorney at law and partner at Fricker and Füllemann Attorneys at Law
Studied at the Universities of St. Gallen and Zurich, graduating with a Master of Law UZH in 2013, registered with the Zurich Bar Registry, member of the Zurich Bar Association.
Still no general certificate obligation
Similar to the vaccination obligation, there is still no general certificate obligation for employees. In particular, employees of a company with a certificate requirement (restaurants, museums, fitness centers, etc.) do not generally need their own Covid-19 certificate.
Verification of the certificate permitted in specific situations
However, according to Art. 25 para. 2bis of the Covid-19 Ordinance special situation may be deviated from. Employers can now check the existence of a Covid-19 certificate if this serves to determine appropriate protective measures in accordance with the STOP principle or the implementation of test concepts. The obligation to provide a certificate must be recorded in writing by the employer, who must consult the employees in advance. Furthermore, the company must then offer regular tests or bear their costs.
The specific risk situation in the company must always be taken into account when issuing the order. In particular, it must be ensured that the employer’s measures always remain objectively justified and proportionate. For example, the type of activity, room situation in the company, frequency of contact with third parties, change of team, etc. must be taken into account. Furthermore, the certificate requirement is exempt where employees without a certificate can wear masks or work from home.
Overall, even under this new regulation, it is not possible for the employer to restrict access to the workplace to employees with a Covid-19 certificate by means of a certificate requirement.
Data protection and prohibition of unlawful discrimination
The employer must ensure that there is no discrimination between employees with a certificate (vaccinated or tested negative) and unvaccinated employees. Any differentiation that is not based on objective reasons is inadmissible. In addition, the information about the reason for issuing the certificate, i.e. whether someone has been vaccinated, recovered or tested negative, may not be used for other purposes.
Vaccination status can be seen from the Covid-19 certificate
The Covid-19 certificate shows whether someone has recovered, been tested or vaccinated. In the case of a legal certificate obligation, employees are therefore obliged to indirectly inform their employer of their vaccination status against Covid-19 by presenting the certificate. In companies without a certificate obligation, there is still no obligation to report vaccination status.
