Due to the coronavirus pandemic, the Federal Council adopted an ordinance on unemployment insurance (OCOVID-19-ACI) on March 20, 2020. This ordinance impacts the short-time work compensation (RHT), which we will analyze below.
The Unemployment Insurance Act (LACI) provides, mainly concerning coronavirus, three types of benefits:
Unemployment benefit (LACI 7 II a, 8-30);
Short-time work compensation (RHT) (LACI 7 II c, 31-41);
Insolvency compensation (LACI 7 II d, 51-58).
We will analyze these benefits in the same order, focusing on the conditions related to the COVID-19 situation:
The conditions for obtaining unemployment benefits are set out in Article 8 LACI. Notably, one must be fully or partially unemployed (LACI 8 I a, 10) or experience a significant loss of work (LACI 8 I b, 11). In relation to COVID-19, one must primarily be engaged in an activity that cannot be fully or partially performed. To determine if the area of activity is restricted or prohibited, it is necessary to first refer to Articles 5 to 9 of Ordinance 2 COVID-19 and then to cantonal decrees or ordinances. For example, in the canton of Vaud, one should consult the implementing decree of the federal ordinance 2 on measures to combat coronavirus (COVID-19) and on measures to protect the population and support businesses against the spread of coronavirus.
RHT compensates for a temporary reduction in working hours ordered by the employer in agreement with the affected employees. The general conditions for entitlement to RHT are defined in Article 31 al. I LACI. It should be emphasized that not all companies are necessarily entitled to this benefit; the temporary reduction in working hours must be temporary and of an economic nature. Under the term "economic," COVID-19 is included, but it must have an insurmountable impact on the company: therefore, companies able to operate remotely cannot claim RHT, while others covered by Articles 5 to 9 of Ordinance 2 COVID-19 may be entitled to it. It is also worth mentioning that RHT aims to avoid layoffs—an insolvent company would generally not be entitled to it—and it must be requested by the employer (LACI 38 I). Finally, we have seen that the OCOVID-19-ACI has modified RHT: broadly speaking, the system has become more generous, for instance, by extending RHT to spouses or registered partners working in the employer’s company and decision-makers (OCOVID-19-ACI 1, 2) or by removing waiting periods from the consideration of work loss (OCOVID-19-ACI 3).
The conditions for receiving insolvency compensation are threefold and cumulative: i) Insolvent employer subject to forced execution proceedings in Switzerland or employing employees in Switzerland; ii) Salary claims of employees subject to contributions (ATF 112 V 55 c. 2.a); iii) Opening of bankruptcy or request for seizure (LACI 51 I). It is highly likely that companies will go bankrupt as a result of the coronavirus; employees of these companies will need to submit their compensation claims to the relevant public fund based on the location of the debt enforcement or bankruptcy office within 60 days of the bankruptcy publication in the FOSC (LACI 53 I, ATF 131 V 454 c. 7).
If you wish to obtain more information on this matter, the Valentin Legal Consultation will be pleased to welcome you at our offices located at Rue du Valentin 1, 1004 Lausanne, to answer any questions you may have. We have also set up a video conferencing system to accommodate the current situation, available on our website: https://www.consultationjuridiqueduvalentin.ch/. We can also be reached by phone at 021 351 30 00 and by email at info@cjdv.ch.
Comentários