The FSIO published on 17.11.2022 that the teleworking tolerated until December 2022 within the scope of Regulation 883/2004 for cross-border workers will be extended until the end of June 2023. Apparently, the very ambitious goal of a definitive regulation could not be achieved. Negotiations continue.
In the blog https://www.zulaufgmbh.ch/en/teleworking-in-the-eu-area-for-swiss-or-eu-citizens-guidance-note-on-telework/ I reported in detail on the content of the Guidance Note published in June 2022. It is not known to what extent the UK, no longer a member of the EU, will adhere to this Guidance Note and approve the extension in the sense of a gentleman’s agreement.
Moreover, according to consultations, the flexible application can only be used for situations with one employer in cross-border telework. As soon as the employee has several employers, it appears that the current flexible application cannot be applied.
Besides, do companies always know whether their cross-border commuters and international weekly residents have another job (for example, a caretaker job) in their country of residence?
Special provisions apply to civil servants in the Ordinance, which leads to different results. The competent compensation office determines who is a civil servant for the purposes of social security law.
In addition, it should be noted that these are only cases of application of Regulation 883/2004. As pointed out in the previous blog, this provision is not applicable to other situations.
Most social security agreements (except the provisionally applied one with the UK) in principle foresee the place of employment principle, which can lead to a division or double subordination of social security, depending on the concrete situation (social security agreement with applicability to third country nationals or only to certain nationalities).
Are the companies concerned about this? In any case, companies should be interested, because they share the risk if an insurance company concludes in a claim that the person is not insured and consequently no benefits can be claimed.
Some companies want to offer flexible forms of work such as telework in order to make them more attractive. If employees can hardly be found, employers are prepared to do more compromises than usual. Companies are well advised to recognise the risks involved and weigh them carefully. In addition to social security issues, taxes, labour law, licensing law, etc. must be included in the considerations. On closer examination, this may lead to the conclusion that employees should be ordered back to their place of work in Switzerland.
The attitude, let’s do it, because where there is no accuser, there is no judge, could inevitably become a boomerang.
