The rapidly escalating challenges from the COVID-19 global outbreak presents critical mobility issues for organisations to assess and address as fast as possible.
Click here to read the newest update on COVID-19 Mobility and Workforce Management.
As we receive questions and case specific scenarios from our network and clients, we have sought to further expand the information available to you through direct conversations we are having every day. If one of the conversations below sparks a question or an idea, feel free to reach out to us to start a conversation of your own. You can submit your question to your direct contact or send a question to: ey.pas.covid@ch.ey.com
Detailed updates through 8 April 2020 can be found in the “key observations” attachment above.
GLOBAL NEWS
Global tax up-dates due COVID-19, read more here.
Global labor/employment law up-dates due COVID-19, read more here.
Global immigration up-dates due COVID-19, read more here.
LABOR LAW
Short term work compensation
What do you and your employees need to know about short term work? Find out more here.
Legal alert for April can be found here.
TAXES
News on German official statement, taxation on short-term compensation and cantonal up-dates. Read more of these up-dates in the “key observations” above.
QUESTIONS AND ANSWERS (new questions are marked with *)
General
*Q. Can you introduce/reduce flexible benefits in view of some assignees either coming home or being stranded in these situations?
A. In some cases it is possible to review the terms and conditions of your assignment contracts and policy provisions to adjust them in view of the situation. It is also important to ensure that the types of benefits are correctly handled within payroll and that the communication to the assignee is proactively managed and mutually agreed.
Q. Can we put assignees/employees on the Swiss payroll if they do not have a Swiss bank account?
A. Yes, this may be possible from a payroll technical perspective (subject to your internal payroll restrictions), but from a practical perspective it may be challenging given the exchange rate and transfer costs. However, if you have assignees who need to get paid and do not yet have Swiss bank accounts this could be a short-term solution.
Q. What happens when the underlying foreign employment contract offers other (more generous or stricter) provisions around compensation?
A. If the choice of law in favor of the foreign law is valid (which must be examined in each individual case), foreign law is in principle applicable. Nevertheless, absolute mandatory Swiss Labor Law must be considered under any circumstances. The provisions on overtime compensation and on the granting of holidays do not usually belong to the absolute mandatory Swiss Labor Law. The right to continued remuneration, however, does usually belong to the absolute mandatory provisions and must, therefore, in principle be considered.
Immigration
Q. If we hire a person, already residing in CH with a B-, G- or C-permit, will they be allowed to start work with us?
A. This person will not be affected by the current COVID-19 situation. Here the question is if the person’s permit allows a change of employer. In general, we can provide the following high-level answer.
- C-permit: yes
- EU B-permit: yes
- Non-EU B-Permit: it depends
- G-Permit: no, a new permit is required. Please see below question.
In any case, specific cases should be analyzed on a case by case basis to ensure full compliance.
Q. We want to hire a new employee (G -permit was linked to another employer). Can they start to work on 15 May 2020? The G-permit expires in 2022.
A. As the employee is already holding a G permit and working in Switzerland an application for a new G permit with updated employer is possible. It would be important to file the application as soon as possible. In general, the employee can start working once the G permit application has been filed. Due to the current situation it would be advisable though to receive the new permit as soon as possible to allow the employee to cross the border.
Q. If new work and residency applications for non-EU nationals are processed only from 15th June and onwards (current situation), does this mean that new assignments can only start earliest mid-August 2020? What about the applications that are already in process?
A. At this stage, we know that the pending applications (already with the authorities) are on hold. The offices are closed and the authorities’ staff is mainly working from home at reduced capacity. For the new applications, most cantons will not accept that we submit an application. Where still possible, we continue to file them to the authorities for priority review (first filed, first served) when the situation returns to “normal”. This said, for Non-EU nationals we understand that the authorities will not issue any entry visa authorization before June 15th, 2020. Therefore, it means that all new assignments cannot start before June 15th, 2020. We do recommend continuing to submit applications, where possible, to allow the cases to be reviewed as soon as possible, however, it is prudent to plan that the assignment start dates may need to be delayed or alternatives considered. Under the current circumstances we estimate that mid-August might be a realistic start date.
Q. In case the individual cannot relocate to Switzerland, start their contract and work, should they be offered local contracts in their home country?
A. This is a possibility, and due to the uncertainty around the impact and length of the current situation, it may be a pragmatic solution. Generally, we do not advise relocating to Switzerland at the moment as this may create issues (i.e. finding an apartment or opening a bank account may not be possible) which in the near future cannot be resolved. It is recommended that corporate tax should be involved to identify any risks.
Social Security
Q. What is the situation with the UK from a social security point of view?
A. The current EU Social Security Coordination rules continue to apply in the UK for the duration of the Transition Period, until the end of 2020. Further, EY has been offered guidance to form the basis of a framework of FAQs covering temporary work and personal situations relating to:
- The EU scenarios and healthcare provisions; and
- Bilateral agreement situations; and
- The application of UK domestic law in non-agreement scenarios.
Based on the initial commentary from HMRC, the UK appears to follow the consensus in EU terms and is expected to publish formal guidance in the coming days.
Q. How will social security charges on income be treated for employees working from home across the border?
A. Swiss AHV will be due on all income, including income for cross borders who are working from home provided they were insured prior to starting to work from home. Further details can be found in our “key observations” attachment.
Tax
*Q. We are considering compensating the employees for potential home office expenses (provision of a workplace, internet line, etc.). This compensation would be paid on an exceptional basis and only during the period of legally mandated “confinement”. Would these payments/reimbursements be considered by the tax authorities as an expense (to be declared in figure 13 of the salary certificate) or considered as income?
A. From the authorities’ point of view, these are therefore false costs insofar as these telework costs would have been incurred anyway by the employee. Subsequent professional use does not change the cost, For allowances to be considered as reimbursement of expenses in the strict sense, the employee must be able to justify that they had to incur additional expenses to carry out their professional tasks among other things. Otherwise, the authorities will consider that it is simply an indemnity for “inconvenience of service” and will therefore be fully taxable.
*Q. What are the positions that other companies are taking in regards to their employees working from home from other countries than where their employer is located due to COVID-19? Are there precautions that we can take to avoid triggering any potential permanent establishment concerns?
A. The OECD recently released guidance on their view of how employees working in countries where their employer does not have a registered entity can be addressed due to the COVID-19 situation. Please find their guidance in the “key observations” attachment above. Note that OECD guidance does not include local legislation for how a country may measure an entities’ activity and this would need to be looked at on a specific case by case example.
Q. Will Italy, like France and Germany, not count the days working from home as Italian work days due to the situation?
A. At this time we are working with the Italian authorities to determine what their position will be regarding cross border employees who were required to shelter in place and work remotely from Italy. At this time the official position has not been released.
Please note that the above information reflects the situation at the time of this publication. We are constantly monitoring the situation and are in close contact with the Swiss authorities to be able to provide further guidance as changes are announced.
