The “Guidance Note on telework” has been published by the European Administrative Commission.
After the meeting in June, the Federal Social Insurance Office announced that a transitional solution until 31.12.2022 has been found for employees with telework in the EU area to whom Regulation 883/2004 applies. The usual subordination rules do not necessarily have to be applied (in particular Art. 13 of the Regulation). This also applies to situations in Switzerland and EFTA states for Swiss or EFTA citizens. Practice will show to what extent reference can also be made to the Guidance Note in the provisionally applied CH-UK social security agreement for CH-UK situations.
The Guidance Note explains the background to this decision. It gives companies the opportunity to prepare sufficiently for the situation beyond 1.1.2023. The aim is to avoid a situation where, with the expiry of the pandemic-related provisions, all employees resident in other EU countries have to return to the employer’s workplace in the other EU country (or Switzerland) to a large extent. Many employees have become accustomed to teleworking or are increasingly demanding teleworking.
Telework is defined in this letter. Conversely, it cannot be assumed for every situation that this transitional solution can be applied. Telework is when the employee accesses the infrastructure from a location other than the employer’s normal workplace and performs normal work for that employer. Telework should also be based on an agreement between the employer and employee, taking into account local legislation. This is an indication that this is a guidance note which is not binding on the countries.
Solution as of 1.1.2023: It is envisaged that an application must be made via the A1 certificate under Art. 16 (exemption) if the telework reaches or exceeds 25% of the activity in the State of residence and the social security subordination is nevertheless to remain in the State of the employer. The authorities of the states involved can approve or reject this application. In many places one can read of a maximum of 40% telework in the country of residence, but this is not to be found in this Guidance Note. Consequently, a practice will have to emerge with which state (EU/EFTA/UK) exactly what can be approved.
It should also be possible for states to come to an agreement directly and find a less time-consuming solution from 1.1.2023. According to information on the website of the FSIO (BSV), the responsible persons are therefore in negotiations with the surrounding countries. Over the next few months, we will have to see what the results of the negotiations are before employers or employees apply for exemptions under Article 16 en masse.
A temporary posting to a telework place should also be possible depending on the situation (Art. 12 of Regulation 883/2004). The Guidance Note lists some examples.
Other nationalities and circumstances: The changes described above do not apply to other circumstances, countries and nationalities. In these cases, telework leads to an undesirable result in that employers have to pay social security contributions for the employees concerned in more than one country.
Employers need to think carefully about which regulations they issue for which groups of employees in relation to telework. In doing so, not only the social security aspects should be taken into account, but also questions of taxation (permanent establishment / withholding taxes in payroll accounting), compulsory labour and licensing regulations of the state in which telework is carried out etc..
The above topics are covered in the following seminars (in German):
Cross-border Social Insurances for HR and Payroll on 30.8., 1.9, 6.9, 8.9 each from 16.00 to 17.30: https://www.zulaufgmbh.ch/kurse/grenzueberschreitende-sozialversicherung-fuer-hr-und-payroll/
Comprehensive treatment of topics in the area of permits, social insurances, taxes, withholding taxes, contract law, labour law etc.:Risks of mobile working of employees at home and abroad for Swiss companies on 2.9. from 8:30 to 17:00: https://www.zulaufgmbh.ch/kurse/risiken-bei-mobile-working-von-arbeitnehmenden-im-in-und-ausland-fuer-schweizer-unternehmen/
For seminars in English e.g. for companies, you can get in contact for individual solutions: https://www.zulaufgmbh.ch/en/contact/.
Some seminars are offered in English: https://www.zulaufgmbh.ch/en/events-and-workshops/