Remote work has become an integral part of modern working models in many companies. What used to be understood primarily as traditional work from home now often goes beyond that: employees no longer only want to work from home, but in some cases also from other locations, such as a holiday apartment, a co-working space, or from abroad.
Especially in the IT sector, it has become clear that the need for location-independent work continues to grow. For employers, this raises the question of how far remote work should be permitted and which framework conditions should apply. The more flexible the place of work becomes, the more important clear rules are. In addition to organisational questions, employment law, social security law, tax law, data protection law, and regulatory aspects in particular must be considered.
Remote Work
As with work from home, the term remote work is also more of a buzzword than a precisely defined legal term. Hence, it is up to the employer to define the term for its own company and to make a conscious decision as to whether, and for which functions, remote work should be permitted.
As with work from home, there is also no statutory entitlement to remote work in Switzerland. The place of work is determined by the employer or is usually defined in the employment contract.
Definition Remote Work
Once the decision in favour of remote work has been made, the next step is to define the framework conditions and to distinguish between remote work and work from home. The exact definition and rules can, for example, be set out in an employee handbook or internal regulations.
In general, remote work is understood as working outside the normal office premises. This may mean working from home or from any other location. This article focuses mainly on working from any location.
In addition to the location, the question of duration also arises. An employer must consider whether it wants to structure positions as one hundred percent remote work or whether remote work should always be temporary. This distinction is legally very relevant, as permanent remote work raises additional and more complex legal questions than temporary remote work.
In addition to employment law issues, an employer must also examine social security, tax, data protection, and regulatory aspects.
Employment Law
From an employment law perspective, it is particularly important to determine whether there should be an entitlement to remote work or not. In addition, questions regarding compensation for infrastructure, transport costs, expenses, and similar matters must be clarified.
As the Federal Supreme Court stated in a decision, the employee may be entitled to compensation if he or she permanently work outside the office premises and no workplace is available to him or her at the employer’s premises.
If an employer wishes to reduce this risk, it should continue to provide the employee with a workplace, for example through desk sharing, and give the employee the right, but not the obligation, to work outside the office.
In the case of permanent remote work, it must also be noted that the place of work may shift. For example, it must be clarified which public holidays apply in such a case. In an employment law dispute, this may also have the disadvantage that the employer can no longer bring a claim at its registered office, because the employee’s ordinary place of work may now also be at the employee’s location.
If working abroad is possible, this may even lead to an employer suddenly finding itself before a foreign court and, in the worst case, local employment law being applied. Such a risk should be reduced accordingly through appropriate regulations.
Social Security Law
As long as remote work is limited to Switzerland, Swiss law remains applicable. Long-term work abroad is more problematic.
In principle, the territoriality principle applies, meaning that the social security law of the country in which the work is performed applies. For temporary assignments abroad, corresponding exceptions usually exist.
Switzerland, the EU, and the EEA have concluded a bilateral agreement for this purpose. If, for example, an employee works 5.5 months in Spain, 4 months in Austria, and only 2.5 months in Switzerland, Spanish social security law could suddenly become applicable, as the main residence would presumably now be in Spain.
As long as the employee performs a substantial part, at least 25 percent, of their work in Switzerland and is resident there, social security contributions can be settled in Switzerland. If the employee works in different countries, the employer’s registered office is decisive if the employee’s activity at their main residence is below 25 percent.
Employers should therefore ensure that the employee’s residence remains in Switzerland and that the majority of the gainful activity also takes place there. This can, for example, be achieved by limiting work in each country to less than 90 days. In addition, an A1 certificate may be necessary to prove registration in the home country.
For all other countries, it must be checked in each case whether a bilateral agreement exists or what the local regulations provide. Some countries now offer special “digital nomad” visas, for example Thailand, which may also reduce the risks.
With time limits and the obligation to continue residing in Switzerland, the risks can already be significantly reduced.
Taxes
Remote work also involves tax law risks. The greatest risk is that a new permanent establishment is unintentionally created, thereby triggering tax liability in another canton or even abroad.
This risk exists above all in the case of permanent activity at a specific location. For employees, the place of taxation may also change if the centre of their life suddenly shifts to another place or if they work in another location for more than 183 days.
Data Protection Law and Regulatory Aspects
In terms of data protection, the additional security aspects must be considered in particular. This includes, on the one hand, the IT setup, for example how working via public Wi-Fi is enabled through VPN or prohibited altogether.
It can also include simple measures, such as a privacy screen protector for mobile devices, so that confidential files cannot be viewed by others.
As long as no foreign permanent establishment is created, Swiss data protection law continues to apply. The employee is generally treated like an employee on a business trip.
In addition to data protection, industry-specific regulations must also be observed. A client advisor at a bank, for example, cannot suddenly advise clients remotely from Spain, as this could mean that European regulations would also have to be complied with.
Conclusion
A company must therefore not only decide: remote work, yes or no. If an employer decides in favour of remote work, clear rules must also be created in order to avoid future problems or at least consciously accept certain risks.
Nomadlaw will be happy to assist you with the analysis and implementation of corresponding regulations and measures, so that remote work in your company does not lead to trouble.
