A few days ago, the much-anticipated official Corona-Warn-App, commissioned by the German government, went live – and has since been downloaded over 10 million times. The goal is to convince as many people as possible to use the track-and-trace-app to curb the spread of COVID-19. While extensive use of the app can be a benefit for employers who are looking at re-opening and return to work planning, some legal questions come up in the employment context.
How Does the App Work?
The Corona-Warn-App is designed to enable contact tracking for individuals who are infected with COVID-19. According to the German government, the app complies with strict German data protection regulations and can be used voluntarily. Bluetooth instead of GPS data is used to measure the users’ meetings according to their duration and distance. The app exchanges codes via Bluetooth when users of the app stay at a distance of less than about 1.5 meters from each other for more than ten minutes. If a user of the app has tested positive with COVID-19, he can voluntarily share this information into his app. Other users who have come into contact with the infected person, will be informed about when, how long and at what distance they had contact with the infected person in the past 14 days. Notified users can then voluntarily be tested at the expense of the statutory health insurance. The German government ensures that the app does not disclose any personal data.
Is the Employee Obliged to Inform his Employer of a Warning from the App or May the Employer Ask for it?
Basically, the employee does not have to inform the employer of any kind of illness but the situation differs if the employer needs such information to protect his staff and customers. Regarding the COVID-19 disease, the widespread legal opinion is that the employee must provide information concerning a possible infection to the employer. In any case, employers should appeal to their employees and ask them to provide such information voluntarily by ensuring that their personal health information will be treated in accordance with data protection regulations.
In the Event of a Warning Message from the App, is the Employer Obliged to Grant the Employee Paid Time Off?
No, the warning message would not be enough to be used as a sick note. The warning is just a notice and reminds the user to take protective measures, in particular, to contact the health authorities and to take a COVID-19 diagnosis test.
Since the employer must avoid infection risks at the workplace, he should immediate action in case of any warning message. The employer must check in each individual case if, for example, a transfer to the home office is reasonable. The employer should also consider releasing the employee from work under continued payment until there is certainty about the infection if necessary.
Can Employers Instruct their Employees to Install and Use the Corona-Warn-App?
- Private Mobile Phones
The employer may not instruct the employee to install and use the Corona-Warn-App on his private phone. The employer’s general right to instruct its employees is limited to the operational area. The employer is allowed to interfere in the private sphere of the employees in exceptional cases only. Exceptions can be considered in cases where the employer’s interests clearly outweigh the employees’ privacy rights, e.g. where the job brings an increased risk for infection and/or an increased interest for health protection, like this may be the case for medical personnel.
- Company Mobile Phones
The employer can order that the Corona-Warn-App needs to be installed on mobile phones provided by him for business purposes only. In this case, a mandatory use may only be possible during the working hours. A legal duty to use the app in times off work is unlikely unless exceptions apply so that the employee’s privacy rights must step behind the employer’s interests. Due to lack of case law in this regard, many questions remain unclear so that we will have to wait for court decisions to gain more certainty.
Do Employers Have to Consult the Works Council?
The works council may have a say when the employer orders the usage of the Corona-Warn-App at the workplace for company mobile phones. Such rights can be considered for various reasons under the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG). The employer and the works council should conclude a shop agreement to regulate the use of the Corona-Warn-App while respecting the rights of the employees.
Employers are well advised to support the spread of the Corona-Warn-App by appealing to the sense of their employees’ responsibility. However, employers should inform their employees that the use of the Corona-Warn-App is voluntary and that there are no disadvantages when not using it.
Please feel free to reach out to our Employment Team in Germany or your usual contact at Orrick to find out more or if you need any help.