This overview provides multinational employers practical advice to develop their coronavirus response strategy on an international level and to ensure a safe working environment for their employees under local employment and labor laws of Germany, France, Italy, UK and Japan.
Coronavirus (2019 – nCoV) has broken out in Germany mainly through contacts at the workplace. 16 coronavirus infections in Germany are known until now of which 14 occurred among employees (and their family members) of the automotive supplier company Webasto in Bavaria. The infection wave at Webasto began during a meeting in Germany which was also attended by an infected employee from the company’s location in China.
Employers trying to determine their coronavirus response strategy face many questions as to which measures are permissible or even obligatory under labor and employment law to prevent infections at the workplace. Here are our answers to the questions most commonly asked.
What are the general health and safety rules employers should observe in the wake of the coronavirus outbreak?
The Working Conditions Act (Arbeitsschutzgesetz – ArbSchG) and the employer’s general duty of care towards employees requires employers to provide a safe working environment for employees which includes protection against infectious diseases. Employers must carry out a hazard assessment in order to determine the necessary health and safety measures. Depending on the degree of the specific hazard, it is advisable to inform the staff and conduct employee awareness training, adopt strengthened hygiene rules, instruct employees to report symptoms and positive diagnoses, conduct medical examinations within the company, change the working organization, etc.
In special sectors where the risk of coronavirus infection is increased (e.g., healthcare industry, airline and other travel industry), the employer may take further protective measures which are appropriate to prevent a coronavirus infection (e.g., instructing employees to wear a protective mask).
Can an employer screen the employees for fever?
Employers may consider fever screening employees, especially in sectors where there is an increased risk of a coronavirus infection. Only if there is a direct threat of coronavirus infection at the workplace, the employer’s instruction to employees to undertake a medical examination is recommended. This would be the case if, for example, one of the employees was diagnosed the coronavirus or the likelihood of coronavirus exposure is given because employees return from the officially declared risk area of Hubei Province in China. However, in the absence of any initial suspicion of a coronavirus infection at a company in Germany, instructions in connection with medical examinations at the workplace are likely to be disproportionate.
Can the employer send employees home if they display coronavirus-like symptoms and if so, must the employer continue remuneration for sick leave?
Employers can place employees on a leave if they show obvious symptoms of an illness (fever, cough, etc.). In this case, the Continuation of Remuneration Act (Entgeltfortzahlungsgesetz – EFZG) applies according to which the ill employee does not lose the claim to remuneration for a period of up to six weeks. The employer’s right to send the employee home results from the obligation to protect the health of the employee concerned, but also the health of all other employees working at the operation.
Also, if the employee does not demonstrate any symptoms but returns from an area which has officially been declared as a coronavirus risk area, the employer can order the employee as a precautionary measure to stay at home to avoid possible infection of other employees. Remuneration must be continued in such cases.
Can the employer still request employees to go on business trips to China?
There is no general right of the employee to refuse a business trip due to the current coronavirus outbreak in China. However, by asking an employee to go on a business trip, the employer must observe the general duty of care towards its employees. The employer should, at its reasonable discretion, weigh the employees’ interests against the company’s interests and assess every case by its individual circumstances.
Either way, employers should observe the Federal Foreign Office’s travel warnings. For now, only a travel warning for Hubei Province has been issued. The arrangement of business trips to this region would therefore not be appropriate and the employee would have the right to refuse without risking sanctions under labor law. The Federal Foreign Office also advises to postpone not necessary trips to China. In general, considerable restrictions on mobility within China can currently be expected. Fever screenings are possible as well as controls during travel within the country; quarantine measures are to be expected in case of symptoms.
In other cases, the employee’s individual situation, such as a pre-existing illness, may play a role in the weighing process and result in the employee being able to refuse the business trip.
Are employers obliged to call back their employees working in China?
The employer’s duty of care also applies to employees who are currently working in China for their German employer. More than 28,000 people in China are already infected with the coronavirus. The employer must observe the situation abroad and, if necessary, take action to protect its employees. Adequate measures can range from instructions on behavior (e.g., taking the taxi to work instead of public transportation, work from the home office) to calling the employee back.
Can employees ask to work from home because they fear a coronavirus infection?
Considering the currently low risk level in Germany, the fear of an infection at the workplace or on the way to work does not entitle the employee to stay home, even if the employee offers to work remotely instead. If the employee does not appear, the employer can issue a warning letter and ultimately even terminate the employment contract. Whether or not its employees have the right to work from home during the coronavirus outbreak is at the employer’s own discretion.
Can the employer order overtime work if many employees are absent?
If the coronavirus spreads increasingly wider throughout Germany and causes a significant part of the workforce to be absent from work, overtime for the remaining employees is practically unavoidable. In exceptional cases, employers can oblige employees to work overtime with the consequence that the permissible maximum working time is exceeded according to section 14 of the Working Time Act (Arbeitszeitgesetz – ArbZG). An exceptional case could be that understaffing results in significant economic disadvantages for the employer. This will have to be assessed on a case-by-case basis.
Must employers protect their employees from corona-related discrimination?
According to current media reports, more and more Asian looking people report to be victims of racial discrimination and even physical assaults have been reported. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) prohibits discrimination on the basis of race, ethnical origin, gender, religion or ideology, disability, age or sexual identity. Therefore, coronavirus protection measures should focus on all employees and not just individuals from China unless the unequal treatment can be justified by a reasonable ground. This would be the case if, for example, an employee travelling back from Hubei Province would receive special instructions by the employer as described above. Since employers are also obliged to prevent employees from any discrimination by other employees or customers, employers should respond to any racial or origin-based harassment of individuals belonging to certain nationalities where the coronavirus is most prevalent.
Are there employee privacy rights to be observed?
Employee privacy rights should be considered when evaluating whether and how to notify other employees about ill co-workers. Employees are generally not obliged to disclose any health information or specifically explain their illness neither to employer nor co-workers. However, in exceptional cases disclosure may be permitted if there is a true risk of an employee infecting others with coronavirus. Since the Public Health Department in Germany must be notified by doctors in case of any (suspected) coronavirus infection, it may be assumed that employers may be informed of the infection as well to be able to take protective measures.
Depending on the individual circumstances, employers have numerous possibilities to respond to the coronavirus outbreak. Should an employer become aware of a particular risk, it is obliged to take protective measures and can exercise its right to give special instructions to employees.
The current situation with coronavirus in Germany does not entitle employees to stay at home. However, where possible, business trips to China should be postponed or replaced by video conferences. Employers are advised to consult with their liability insurance association (Berufsgenossenschaft) if they want to take further health and safety measures, or in cases infections occur.
Has the French government issued guidelines for employers?
As of February 10, eleven cases of contamination have been detected in France.
At this stage, the French government has not issued any guidance specific to coronavirus workplace contamination and has mainly implemented measures regarding people travelling from/to China or who have been in contact with infected persons. Thus, dozens of families have been repatriated from China and are currently quarantined.
For the general population, the government has simply reminded the basic steps to prevent flu spreading, which are in line with the WHO recommendations.
What measures should French employers implement in France to protect their employees from the coronavirus threat?
Under French Employment Law, employers must take all necessary measures to ensure the health and safety of their employees, including preventive actions, training actions as well as the setting up of an adapted work organization and means. The French Employment Code specifically provides that these measures must be adapted to “take into account the changing circumstance” and “improve current situations“.
Thus, the first step should be to inform the employees of the WHO/governmental recommendations (frequent handwashing with alcohol-based soap, elbow coughing/sneezing, recourse to single-use tissues, avoid close contact with anyone who has fever and cough, avoid the consumption of raw/undercooked animal product, etc.).
Then, the employer should assess the level of risk incurred and implement additional measures accordingly:
- A specific coordination with the occupational doctor to handle employees displaying signs of contamination (bearing in mind the employees’ privacy rights);
- The provision of disposable masks/or and other hygiene protective equipment/products;
- An increase in workplace sanitation;
- The implementation of specific health and safety procedures;
- An increase in the recourse to telework (which is specifically authorized by the French Employment Code in case of an epidemic threat);
Depending on the extent of such measures, the employer may have to inform and consult the company’s Social and Economic Committee and amend its internal regulations and risk assessment documentation.
If France’s exposure to the coronavirus threat was to increase, the French government would certainly encourage companies to prepare a wider outbreak. In this regard, in 2009, employers were asked to set up business continuity plans to ensure the stability of their business in case of a wider spread of the H1N1 flu.
How are quarantined employees handled from a social security standpoint?
Employees who are subject to quarantine/isolation measures (and who thus cannot work/be paid) resulting from their contact with an infected person or their stay in a high-risk area where they might have been exposed to the virus are entitled to social security-funded daily allowances pursuant to a 31 January governmental decree.
Such allowances can be paid from the first day of absence, without the employee having to meet the conditions for entitlement relating to minimum periods of activity, minimum contributions and waiting periods.
Can French employer still request employees to go on business trips to China and do they have to call back their employees working in China?
On February 8, the French Ministry of Europe and Foreign Affairs has flagged the Hubei Province as a “red area” and China as a whole as an “orange area”, which means that:
- The government strongly advises against travelling to Wuhan and throughout Hubei province;
- All non-essential travels to China should be postponed;
- French citizens who are in a position to do so should consider temporarily interrupting their stay in China.
Based on these governmental recommendations as well as the employers’ obligation to protect the employees’ health and safety, business trips to China should be temporarily avoided, and employees currently stationed in China should be repatriated (it being specified that such employees may refuse their repatriation if the concluded a local employment contract and if their French employment contract is suspended).
If the employer has essential reasons to maintain such trips, extensive measures should be taken to protect the employees: failing to do so, such employees could invoke their right to stop working (“droit de retrait”) if they have a reasonable cause to believe that their life or health are facing a serious and imminent danger.
Must employers protect their employees from corona-related discrimination/harassment?
While designing their response to the coronavirus threat, employers should keep in mind that an employee may not be discriminated against based on his/her medical condition.
Finally, employers should prevent any form of discrimination or harassment targeted at employees of Asian descent that may arise from the coronavirus anxiety.
According to Public Health England nine people in the UK have tested positive for coronavirus. Two of the patients are members of the same family, it is understood they recently travelled to the UK from China. One of the nine patients is reported to have contracted the virus in Singapore. All nine patients are being treated at specialist NHS centres, and investigations are being carried out to determine whether the three patients have come into close contact with others. The Public Health England definition of close contact is being within two metres of the infected person for 15 minutes.
Professor Chris Whitty, Chief Medical officer for England, said the initial two cases do not increase the risk to the UK and the virus remains “moderately transmissible”. The coronavirus currently has a 2% mortality rate – considerably lower than the outbreaks of Ebola (70%) and SARS (10%). Nevertheless, it is important that employers have a clear strategy in place to ensure a safe working environment. Whilst the UK Chief Medical Officers have raised the risk to the public from low to moderate, Public Health England do not think the risk to individuals in the UK has changed at this stage, but that government should plan for all eventualities. As such, we are inclined to be reasonably optimistic in our view that the virus will not pose a material risk to the working population in the UK.
Traveling to China
The Foreign and Commonwealth Office (FCO) advise against all travel to Hubei Province due to the coronavirus outbreak. The FCO advise against all but essential travel to the rest of mainland China (not including Hong Kong and Macao). It is therefore advisable for employers to cease work trips to China for the moment. Where possible, employees should use videoconferencing or teleconferencing as appropriate.
Employees who are sick
If employees are sick, you should consult your employees’ contracts, the employee handbook and policies which govern sickness and sick pay and treat this like any other sickness absence.
It is important to note that the UK government has advised that anyone in the UK who has travelled from mainland China, Thailand, Japan, Republic of Korea, Hong Kong, Taiwan, Singapore, Malaysia or Macau in the last 14 days and is experiencing cough or fever or shortness of breath, to stay indoors and call NHS 111, even if symptoms are mild.
What happens if someone gets stuck overseas and cannot return for reasons related to the virus?
It is possible that you could have an employee who suddenly finds themselves unable to attend work due to being on holiday or a work trip and not being able to return, due to cancelled flights. If possible, they can work remotely. If that is not possible, then on the question of whether you need to keep paying them, you will need to look at your travel policy (if they were on a work trip) and see if this is covered. If not, and in the case of holidays as well, it may still be reasonable to pay your employee (particularly if it was a work trip), as this is an absence which is not their fault. Hopefully these cases will be unusual.
What about fear in the workplace?
Employers should be extra vigilant to ensure that anyone with the symptoms stay home. It is more likely than not that anyone with such symptoms does not have the virus but taking this minor precaution is probably advised. If you have any employee who refuses to attend work because they are afraid that they may catch the virus, then this will have to be handled very carefully and the context of that fear would need to be considered in deciding your response. Disciplining someone who refuses to attend work could lead to a legal claim if there are genuine reasons for their fear that you have not properly assessed before taking such action.
Employers need to be attentive of the risk of potential race discrimination claims in the workplace in association with the coronavirus. There have been some reports by British Asian persons that they have been the victims of racial abuse. British Asians using public transport have reported fellow passengers saying they are, “…not sitting next coronavirus”. If such comments were to be made in the workplace by an employee to or about another employee, this could lead to a claim of direct race discrimination against the employee. The best way to guard against this is to be open and informative and make sure your employees understand where the risks are and where the risks are not so that such ill informed comments are not made. It is also critical to take immediate action if you hear of any such comments being made.
Would the coronavirus be considered a disability?
At this stage we would be slow to determine that the coronavirus qualified as a disability. Given the changing landscape, however, this is a topic that we will continue to keep under review.
We continue to learn more about the virus on a daily basis. As such it is important that employers continue to monitor government guidance and work in a way which enables employees to be in a safe and calm environment. However, we are hopeful that impact in the UK will be very limited.
As of February 9, three cases of coronavirus were confirmed in Italy. The last case of coronavirus confirmed, the first which involves an Italian, was confirmed on February 6th. It concerns one of the 56 Italians returned from Wuhan and quarantined once they landed in Italy. He was transferred to Spallanzani Institute in isolation.
The first two cases of coronavirus in Italy, a couple of tourists from China, were confirmed on January 30th by the Spallanzani Institute, where they have been in isolation since January 29th. The situation is under control. Health surveillance for people who got in touch with such Chinese tourists has been activated in a timely manner. All measures have been taken both for some people in the hotel in Rome where they were staying and for other tourists, all of whom are asymptomatic and do not cause concern to date.
In Italy there is a surveillance network on the new coronavirus and controls and screening have been activated under the coordination of the government task force.
Italy forbid all flights to and from China for 90 days starting from January 30th, in addition to those from Wuhan already suspended by the Chinese authorities. On January 31st, the Italian Government declared a state of emergency and allocated the first funds and appointed Civil Protection Chief as Special Commissioner for Emergency.
What measures should Italian employers implement to protect their employees from the coronavirus threat?
By a communication dated February 3, 2020, the Health Prevention Directorate General of the Ministry of Health, in relation to the “coronavirus 2019-nCoV” epidemic in progress in China, issued instructions on the behaviors to be kept by those who, for working reasons, came in touch with other people. According to Italian legislation on health and safety in the workplace (i.e., Italian Legislative Decree no. 81/2008) the employer, jointly with its competent doctor, is obliged to protect its employees from any risk, including biological risks, through specific prevention measures. These latter must take account of the risk situation which, as far as the coronavirus is concerned, is currently characterized in Italy by the absence of virus circulation.
According to the governmental recommendations, employers are therefore requested to spread the following information to all employees: with the exclusion of healthcare personnel, those who work in contact with the public are recommended to follow the common preventive measures related to spread of respiratory transmitted diseases, and in particular:
- washing hands frequently;
- paying attention to surface hygiene;
- avoiding close and protracted contracts with people with similar flu symptoms.
Attention if, during the working activity, an employee comes into contact with a person who meets the definition of a «suspicious case» as defined by the Circular Letter of the Health Ministry dated January 27, 2020 (i.e., a person with severe acute respiratory infection and an history of travel or residence in at-risk areas of China in the 14 days prior to the coronavirus outbreak), the employer (but also the employees) must contact the health services reporting that it is a suspicious case for coronavirus. While awaiting the arrival of the medical staff, the employee concerned must:
- avoid close contact with the sick persons;
- if available, provide a surgical mask;
- wash his/her hands thoroughly.
In addition, the employee must pay particular attention to the part of his/her body that may have come into contact with the patient’s fluids (respiratory secretions, urine, etc.); have the paper handkerchiefs used removed in a waterproof bag directly by the patient. The bag will be disposed of in one with the infected materials produced during the medical activities of the rescue personnel.
Can Italian employer still request employees to go on business trips to China and do they have to call back their employees working in China?
After the coronavirus outbreak, Italian Ministry of Health and Italian Ministry of Foreign Affairs advised against all travel to China. In particular, all non-essential travels to China should be postponed. Therefore, Italian employers (who must ensure employees’ physical integrity) must take these recommendations into account and assess on a case-by-case basis their real need and importance of the business trip to China giving priority to employees’ health protecting these latter from potential risks. For this reason, employers are strongly advised to call back their employees working in China, indeed also in this case employer must protect their employees’ health taking appropriate actions.
Can the employer send employees home if they display coronavirus-like symptoms and if so, must the employer continue remuneration for sick leave?
Employers have to send employees home if they show coronavirus-like symptoms, also considering that Italy government has advised that anyone who has these symptoms (though he/she has not been to China recently) to stay at home, even if symptoms are mild. The employers have to do that because they are obliged to protect the health of all their employees adopting any possible precautionary measures (including this one).
In such case, the employee is entitled to the earn the same amount he/she would have earned in case of regular performance of his/her working activity.
Can employees ask to work from home because they fear a coronavirus infection?
Despite the coronavirus outbreak, the employees are not entitled to choose to work from home on the sole basis of their fear of an infection. In the event that the employee decides to stay at home because of the abovementioned reason, his/her absence from the workplace would be considered unjustified and therefore the employee could be sanctioned with a disciplinary measure (including dismissal).
Must employers protect their employees from corona-related discrimination?
In Italy, as reported by numerous newspapers, following the coronavirus outbreak in China, there have been several acts of discrimination and violence (both verbal and physical) against Asian people, in fact a psychosis related to the coronavirus contagion has been frightfully spread. In such a scenario, employers must keep in mind that an employee cannot be discriminated on the basis of race, language, religion, sex, age, disability, sexual orientation, personal beliefs and political opinions. Therefore, when taking measures to prevent the spread of the coronavirus, employers must be careful to avoid possible forms of discrimination (especially against Asian people), but at the same time they must also prevent and immediately counteract discriminatory acts or abuse in the workplace related to the coronavirus so that discriminatory incidents abovementioned do not occur within the workplace. This can be achieved, first and foremost, by launching an information and awareness campaign.
As of February 12, there were 28 confirmed cases in Japan. Among these 28 people, 24 had recently returned from Hubei, China, and the remaining 4 people had direct contact with people who had been in Hubei or were otherwise infected. In addition, as of February 12, 174 people traveling aboard the U.K.-registered cruise ship Diamond Princess, which arrived in the port of Yokohama on February 3 after visiting Hong Kong, have been confirmed to be carrying the virus. Everyone on board (over 3600 passengers and crew members) who is not hospitalized for treatment of the virus has been kept on the ship since arrival.
Effective February 1, the Japanese government identified coronavirus as a designated infection under the Infectious Disease Law. Now, ministries of all prefectures may order employees who have been infected to be hospitalized and to be suspended from work under the Infectious Disease Law, and the general rules for sick employees under the Industrial Safety and Health Act does not apply to the extent that the Infectious Disease Law is applicable.
The Ministry of Health, Labour and Welfare issued a Q&A with respect to coronavirus workplace contamination on February 7. Below are specific measures that companies should take under the Infectious Disease Law, based on that Q&A and some tips for recommended approach.
What should employers do with employees who have returned from Hubei or Zhejiang and show no signs or symptoms of coronavirus?
Effective from February 1, foreigners who have been in Hubei in the last 14 days and people who have Chinese passports issued in Hubei are generally barred from entering Japan. Effective from February 13, Zhejiang, China is added to the barred list. This restriction is quite narrow compared with those of other countries, which impose entry restrictions on travelers from all of China.
If employees who have returned from Hubei or Zhejiang within the last 14 days show no signs or symptoms of coronavirus, such as fever or cough, employers are not legally required to take any measures. This means that employees can work in the office immediately, even after returning from Hubei or Zhejiang. However, under the Labor Contract Law, employers are obligated to maintain a safe and healthy workplace for all employees and to protect other employees from coronavirus, so the recommended practice is to suspend those employees who have returned from these areas from work for a certain period.
If doctors confirm that such employees are not infected and able to work in the workplace but employers choose to keep them suspended, employers must pay them the statutory leave allowance at a rate of 60% or more of base salary during suspension, as this situation falls under the statutory leave allowance requirement of “suspension due to reasons attributable to companies”. However, if such employees have visited Hubei or Zhejiang for business or had contact with people who may have been infected on business, the recommended practice for employers is to pay full salary during suspension.
What about employees who have returned from Hubei or Zhejiang within the last 14 days or have had contact with people who have returned from Hubei or Zhejiang within the last 14 days show signs or symptoms of coronavirus?
It is an employee’s responsibility to contact a local healthcare center and see a doctor if they show signs or symptoms of coronavirus when they have returned from Hubei or Zhejiang within the last 14 days or have had contact with people who have returned from Hubei or Zhejiang within the last 14 days, or if infection with coronavirus is otherwise suspected. If such employees report to work, employers must refuse to permit such employees in the workplace so as not to put other employees at risk of infection.
If employees are suspended from work under the Infectious Disease Law, absence is treated the same as ordinary absence for sickness. Paid sick leave is not mandatory in Japan, and if no paid sick leave is granted at a company and employees are unpaid, the employees’ health insurance pays accident and sickness benefits to the employees at the rate of 2/3 of their daily base salary. If the employees desire to use their annual vacation days during such absence so that they are fully paid, employers may apply annual vacation days for such absence. However, it is employees’ option whether to use their annual vacation days or not and employers are not allowed to force employees to use their annual vacation days for such absence.
May employers order employees to visit China for business?
Under the Japanese employment laws, employers may order employees to travel abroad for business. However, such an order is considered ineffective if it is abusive of the employer’s right to give such an order.
At this moment, it is highly likely that to order employees to travel to Hubei or Zhejiang would be considered abusive of this right and therefore be ineffective. Meanwhile, the Japanese government treats Hubei and Zhejiang, and the rest of China differently, so the effect of a business trip order with respect to the rest of China would be considered on a case-by-case basis, taking into account the necessity for such travel and how affected the destination is.
May employers order or allow employees to work from home?
Under the Japanese employment laws, employees are not entitled to choose to work from home unless the individual employment contracts or the work rules provide for remote working. If the individual employment contracts or the work rules provide for remote working, both employers and employees should simply follow the procedures in these documents. If not, the general rule is that employers may not order employees to work from home without employees’ consent, and if employees request to work remotely, employers may refuse. However, if the threat of coronavirus becomes more serious and there is imminent danger involved in commuting to and working in the workplace, employers will need to take appropriate measures to keep business going while maintaining employees’ safety and health. In such cases, employers may be held responsible for making employees report to offices and encourage employees to work from home would be an option.
The right response to the coronavirus outbreak depends on the specific circumstances and should be tailored to the company’s needs. Employers are advised to monitor government guidance, consult competent bodies for more information and involve legal counsel as needed. We are pleased to help if you have any questions.