The consequences of the spread of the novel coronavirus (Sars-CoV-2) have reached the German labour market. Many companies are daily confronted with new and complex legal questions regarding the handling of coronavirus-related issues in employment relationships.
The following overview shows the most frequently asked questions and answers.
1. Which protection obligations must companies observe with regard to the coronavirus?
- Employers have protection obligations towards their employees. They are obliged to avert health hazards to their employees at the workplace and to actively protect them from danger to life and limb.
- In light of the current outbreak of the coronavirus, it is advisable to introduce strict hygiene regulations in companies in accordance with the recommendations of the Ministry of Health and the Robert Koch Institute, to inform employees of the risks and dangers, to instruct them, to report symptoms and positive diagnoses immediately and, depending on the sector and the person affected, to implement further increased protective measures and rules of conduct – e.g. instructing employees to wear a protective mask or providing protective equipment.
- The employer must cover the costs of such measures.
2. How should employers react when COVID-19 is detected or suspected in the workplace?
- In the event of a concrete suspected case or even if one or more employees in the company become aware of an illness with COVID-19, there are increased protection obligations. The employer must inform its personnel of the case and should identify all contact persons as soon as possible. The local health authority should be consulted, which will discuss further actions with the employer.
- In any case, the affected employees should be quarantined. If possible, further work from their home office should be arranged. If it is not possible to work from home, the affected employees are to be released from work with continued payment in order to keep the risk of infecting other employees as low as possible.
3. Who pays the remuneration if an employee is quarantined by order of the authorities and cannot continue working?
- If an employee is subject to a prohibition of work or is in quarantine as a dropout, suspect of infection, suspected illness or other carrier of pathogens (including coronavirus), he is entitled to compensation for loss of earnings in accordance with § 56 of the German Act on Protection against Infections (Infektionsschutzgesetz – IfSG). The employer must first continue to pay the employee’s remuneration for a period of up to six weeks and may then request reimbursement from the responsible health authority.
- However, the reimbursement entitlement may not apply if the employee is entitled to continued remuneration on another legal basis. If the employee who is in quarantine is ill with COVID-19, he is entitled to continued remuneration for the duration of the illness. The relation between the entitlement for reimbursement under the IfSG and the entitlement to continued payment of remuneration is not explicitly regulated by law. Since § 56 IfSG requires the employee to sustain a loss of earnings in order to be eligible, the employer will likely not be entitled to reimbursement for periods of continued remuneration.
4. Are employees allowed to refuse their work performance because they are afraid of an infection at work?
- A refusal of work performance is generally not possible. The fear of an infection at work or on the way to work does not entitle employees to stay at home. If the employee does not show up for work, the employer may formally warn him and even finally terminate the employment relationship in individual cases.
- However, there is an exception to this principle: if the work performance would be unreasonable for the employee, it may be refused. Such a case would be conceivable in the event of suspected cases or proven infections within the company if the company does not adequately comply with its resulting increased protection obligations.
5. May the company order work from the home office?
- A unilateral order of home office work on the basis of the employer’s right of direction is not possible, unless the employment contract already provides for this possibility. Rather, the employee’s consent or a mutual agreement is required.
- It should be noted that the employer has to provide the home office equipment. In the absence of an agreement and if the employee refuses to work in the home office, only a paid release from work will be possible.
- Furthermore, a unilateral order of home office work could exceptionally be permissible in individual cases due to a concrete risk of infection, but this has not yet been confirmed by the highest courts. Such a case could arise, for example, if an infection with the coronavirus was detected in the immediate vicinity of an employee.
6. May the employer order overtime in the event of increased absence due to illness?
- If a significant proportion of the employees is absent due to illness as a result of the coronavirus, additional work and overtime for the remaining employees is conceivable. In exceptional cases, the employer may oblige its employees to work overtime with the result that the maximum permissible working time according to § 14 of the Working Hours Act (Arbeitszeitgesetz – ArbZG) is exceeded. An exceptional case could be that understaffing leads to considerable economic disadvantages for the employer. This must be examined in each individual case.
- Arrangements for a holiday ban due to increased workloads caused by the absence of a large number of employees due to illness are also possible.
7. What happens when employees are unable to work as they care for their children due to school and daycare closures?
- In general, employees with children under the age of 12 years may only be absent from work for a short period of time without loss of remuneration if no other form of childcare is available. According to § 616 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), employees are generally entitled to continued payment of remuneration if they are prevented from performing their work for a relatively insignificant period of time for a personal reason which is not their fault. A prerequisite, however, is that they cannot otherwise care for their children (e.g. with help of partner, family), while care by grandparents is likely not an option in the present situation, since elderly people are particularly at high risk of the COVID-19 disease.
- The employment contract may provide that the employer does not have to pay any remuneration in such a case. This should be examined.
- The obligation to continued payment of remuneration applies only for a short period. The duration of this period has not been conclusively clarified by courts, but the prevailing view is that it should not be longer than about five days. A solution for the subsequent period should be sought together with the employees concerned, such as a reduction in working hours (if necessary, by using short-time work allowance), reduction of remaining vacation, overtime and credit balances in working time accounts. Where employees are not willing to use their vacation days, a unilateral order of vacation or unpaid leave may be considered.
- In the event that working parents are unable to fulfil their working duties due to the closure of kindergarten, day care centre and/or school as a result of the pandemic, a newly created right to state-funded compensation pursuant to the German Infection Protection Act (Infektionsschutzgesetz – IfSchG) may apply for the period from March 30 to December 31, 2020. Details of this claim are explained here.
8. Can employees still be required to travel on business?
- In principle, employees cannot refuse business trips due to the coronavirus outbreak. However, the employer still has a duty of care towards its employees when ordering business trips.
- The interests of the company should always be weighed against the interests of the employee in each individual case. Anyway, ordering business trips abroad is currently not possible due to entry restrictions in many countries. Employers should in any case heed current travel warnings issued by the Federal Foreign Office.
- In addition, the individual situation of the employee may play a major role in the assessment. For example, older employees and employees with pre-existing illnesses should not be obliged to take business trips in general, as it is recommended for them to move into isolation at home anyway. These employees may therefore also decline business trips.
9. May the company order vacation in case of an increased work loss?
- It is advisable to primarily reach an amicable agreement with the employee.
- The current situation could also justify the unilateral ordering of vacation or company vacations (Betriebsferien) for urgent operational reasons, for example when the company or certain departments have to be closed temporarily. Vacation that has already been approved cannot be revoked unilaterally.
- Since there are no precise regulations on this, any unilateral measures should only be taken after thorough consideration of the company’s interests and the employee’s concerns. The procedure should then be to first grant any remaining vacation from 2019 and only a certain number of holidays for 2020. In any case, the unilateral ordering of vacation should not cover the entire vacation entitlement for 2020.
- The employer is regularly entitled to order the reduction of working time accounts by compensatory time off.
- The works council, if any, has to be involved in the above-mentioned measures.
10. May employers demand short-time work due to lack of work?
- A unilateral order of short-time work by the employer is generally not possible. Rather, it must be based on a collective agreement, a shop agreement or, if there is no works council, an agreement with the employee, for example in the employment contract or in a supplementary agreement.
- The German parliament has simplified the conditions for receiving short-time work allowance in times of crisis by means of the “Act on the Temporary Crisis-Related Improvement of the Regulations on Short-time work allowance” (Gesetz zur vorübergehenden krisenbedingten Verbesserung der Regelungen zum Kurzarbeitergeld) of 13 March 2020 and authorised the Federal Government to implement the simplifications by legislative decree in the event of exceptional circumstances.
- In order to access short-time work allowances, more than 10 % of the employees employed in the operation or department must be affected by the loss of working hours of more than 10 % of their salary in the respective calendar month. Details of the conditions for access to short-time working allowance and the application procedure are explained here.
11. Which particularities apply to companies with works councils?
- The works council’s co-determination rights must be considered when implementing many measures aimed at protection against the coronavirus or relating to changes in the organization and conduct within the company or in the usual working hours, for example when introducing special hygiene regulations, ordering overtime and short-time work. The management and the works council should work together in good cooperation to implement the necessary measures without delay.
- Moreover, there is the option of regulating all measures to be taken in connection with the coronavirus pandemic in a pandemic shop agreement, which brings the possibility of already creating further scope for action. In addition to regulations to avoid the risk of infection, such an agreement may include regulations on home office, overtime or compensatory time off, vacation, company holidays and a temporary closure of facilities.