Employment 22. March 2020

Germany: COVID-19 – answers to burning labour law issues

22. March 2020
Dr. Thomas Block, MBA
act legal Germany

Can employees stay at home for fear of infection?

The answer is NO!

Employees are not entitled to refuse their work only for fear of being infected with the corona virus.

Employees are also not entitled to work in home or mobile office from now on. However, this may soon be in the employer`s urgent interest, e.g. in the event of a closure of the company. Therefore, it is essential that a mutually agreed employment in a mobile office is contractually agreed. Please contact us for more information.   

Kindergarten and schools are closed. Are employees now allowed to stay at home if they have no other caregiver for their children requiring care?

The answer is still NO!

Employees are obliged to organize replacement care for their healthy child.

However, if the case is such that it can be proven that no other caregiver is available, employee may under certain circumstances have the right to refuse his or her performance, with the legal consequences that the obligation to pay remuneration also does not apply (principle: “no remuneration without work”) There is in exception to the principle “no remuneration without work” (Sec. 616 BGB), which obliges the employer to continue to pay for a relatively insignificant period of time. A guideline of 5 days applies here. However, this only applies if the employment agreement does not exclude the application of this provision, which must be examined in each individual case.

Employer and the work council can exclude Sec. 616 BGB in a works agreement in order to secure the existence of the employer.

Employer and employee should regulate in the employment agreement how the “release from work” should take place:

  • Reducing overtime,
  • Build minus hours to a certain limit if a working time account exists,
  • Holiday reduction,
  • Possible a few days Sec. 616 BGB,
  • Unpaid garden leave.

What is the legal situation if my employees do not show up for work due to a public transport stop?

In this case, the employer is not obliged to any renumeration because the travel risk is assigned to the employee’s sphere of risk.

Can the employer unilaterally close his or her business and in doing so unilaterally order holiday or instruct the employees to reduce time credits or company holidays?

Basically: A clear YES!

If the employer closes the business based on his own decision, for example in order to protect his employees, he bears the renumeration risk in accordance with the principle of the so-called business risk theory (Sec. 615 sent. 3 BGB). This also applies if the disturbance – as in the case of the coronavirus- does not originate from a sphere of danger that can be influenced by the employer.

In order to minimize the damage, it is recommended that employees first agree to work from home (please use our mobile-office-agreement – request them), apply for short-time work, unilaterally grant employees any remaining leave entitlements or reduce overtime accounts. A unilateral granting of holiday by the employer is exceptionally excluded only if the employee has already applied for and been granted his entire leave entitlement or if the granting of leave is contrary to other leave wishes of the employee.

What happens if there is a suspicious case in our company? 

If there is a suspected case of the coronavirus in the company, the employer must inform the rest of the employees about this case in order to identify and clarify possible contact persons as quickly as possible.

The employer, on the other hand, has no obligation to report to the health authorities, as the obligation to report is directed to the diagnosing doctor, but not to the employer, in accordance with Sec. 8 IfSG.

What happens if an employee has been tested positive for Covid19/coronavirus?

If the suspicion of an infection with Covid19 is confirmed, the first thing that applies to the affected employee is that he or she is incapable of work and therefore has a claim against the employer for continuation of regular pay for a period of up to 6 weeks in accordance with Sec. 3 para 1, 4 EFZG.

The legal situation is different if one or more employees are affected by the order of quarantine within the meaning of Sec. 30 IfSG by the health authority.

In this case, the provisions of Sec. 616 para 1 BGB in conjunction with Sec. 30 IfSG secures the renumeration of the affected employees. An employee does not lose his or her right of renumeration against his employer if he or she is prevented from performing his or her work for a relatively insignificant period of time through no fault of his or her own. Such prevention and thus a claim for continued payment of remuneration against the employer applies in the case of a prohibition of activity due to official measures according to the IfSG according to the highest judicial jurisdiction.

In addition, the IfSG stipulates that the employer is obliged under Sec. 56 para 1, 2, IfSG to pay compensation in the amount of the net loss of earnings to the employees concerned for a period of up to 6 weeks instead of the health authority, i.e. as paying agent.

At the beginning of the seventh week, the renumeration is granted directly by the state in the amount of the sickness benefit.

As in all cases, it is advisable to first discuss with the employee the reduction of vacation and overtime as well as comparable instruments or to order them unilaterally.

What can the employer do against an official closure order?

In principle, the authorities have very far-reaching rights of intervention within the legal framework of the Infection Protection Act (IfSG). This includes in particular the right of the health authorities to close down entire businesses. Individual cases of infection among employees are sufficient for this.

Initially, the employer has no possibility to take action against the closure order. The employer only has the right to subsequently assert any claims for damages against the authorities.

Under which conditions can the employer assert a claim for reimbursement? Which deadlines apply?

If the employer is called upon to pay compensation under the IfSG, he or she can apply to the competent authority within three months for reimbursement of the amounts paid. Pursuant to Sec. 56, para 12 IfSG, the employer may also apply to the competent authority for an advance payment of the anticipated amount to be reimbursed in accordance with sec. 56 para 12 IfSG. Further compensation benefits may, for example, be granted to self-employed persons under certain circumstances (see Sec. 56, para 4 IfSG).

How do I as a company introduce short-time work?

With the “Act on the temporary crisis-related improvement of the regulations for short-time work compensation”, the Bundestag has greatly simplified the access of companies to receive short-time work compensation. The requirements are now as follows:

  1. If orders are missing due to difficult economic developments, a company can apply for short-time work if at least 10 percent of the employees could be affected by the loss of work. This threshold was previously 30 percent of the workforce in accordance with Sec. 96 SGB III.
  2. It has also changed that, by way of derogation from Section 96 para 4 sent. 2, point 3, the structure of negative working time balances can be dispensed in whole or in part before payment of the short-time work allowance. The current law has so far required that companies where agreements on fluctuations in working hours are used, these should also be used to avoid short-time work and be reduced.
  3. Temporary workers will also be able to receive short-time work compensation in the future.
  4. The social security contributions that employers normally have to pay for their employees will in future be fully reimbursed by the Federal Labour Office. This is intented to create an incentive to make greater use of periods of short-time work for the further training of employees.

Notification to the Federal Labour Office must be in writing or electronically. Locally, the Federal Labour Office in whose district the business is located is responsible. The employer itself or the works council is entitled to file an application. Within the scope of the notification, the company must provide credible evidence of the requirements by submitting documents. These documents include: Documents showing the cause of the loss of working hours; comparative figures showing under-utilisation; information on the temporary nature of the loss of working hours; statement by the works council on short-time working; agreement on the introduction of short-time work and agreements on working time accounts, if available. 

Question relating to co-determination

In principle, the co-determination rights of the works council remain in full. In particular, the works council must be involved in a transfer in accordance with Section 99 of the BetrVG. A transfer is also generally available in the case of temporary employment in the mobile office. We recommend the following procedure:

  • Employers announce to the works council that the (local) transfer to the home or mobile office will initially only be for a maximum of 4 weeks. With it, it can be argued that still no participation-obligatory transfer in the sense § 95 para. 3 BetrVG would exist. It remains to be considered that the circumstances of the work change seriously and consequently already with the first day of the transfer also obligation of codetermination exists.
  • Just do it with references to the exceptional situation. If the works council should nevertheless take legal action after Sec. 101 BetrVG, employers could initially justify the local transfer by means of § 100 BetrVG and, if necessary, file a court application for a substitution of consent themselves. In this context, it is also questionable whether the functionality of the courts can be guaranteed if the quarantine orders, which can no longer be ruled out, are issued.

Co-determination rights also exist in connection with health protection, Sec. 87 para 1, No. 7, BetrVG, as well as in the case of a possible vacation order and/or unilateral ordering of company vacations.

The co-determination of the work council is however excluded if the employer only fulfills official instructions.

Data Protection: Legitimate measures

In the light of the events that have taken place, the constant re-infection and the lack of uniform lines of the European Data Protection Authorities, the following measures are not exhaustive and definitive. In our opinion, the following measures are currently compatible with data protection law:

  1. Employer’s right to interview: The employer is entitled at any time to require his employees to state whether he/she was in a risk area or had direct contact with infected persons. In principle, the employer is only entitled to negative information from the employee, but in our opinion the employee is also obliged to answer truthfully in order to avert damage to third parties.
  2. Voluntary self-disclosure – or questionnaires on whereabouts and symptoms: Information can also be obtained in the form of a questionnaire. Here however a right of codetermination of the work council exists. It would be preferable if the employee gave his or her consent before filling out the self-disclosure form. This consent has the following conditions:
  • Written consent before the measure,
  • Informative consent, i.e. the purpose of the information is clearly defined,
  • Voluntarily, i.e. without pressure,
  • Instruction about the right of revocation,
  • Instruction about no adverse consequences in case of refusal.

The consent of the employees is legally mandatory in case of:

  • Taking the temperature and
  • collecting the current private mobile phone numbers or other contact details of employees for information purposes in the event of closure of the business or similar cases.
Dr. Thomas Block, MBA
About the authors

Dr. Thomas Block, MBA

Attorney at law

Adviser to prestigious companies in Germany and abroad on all issues of individual and collective employment law and on matters of general business and data protection law. Guidance in outsourcing projects. Control and implementation of complex restructuring projects, application of new rules and regulations and representation in complex negotiating and contentious situations. Praised by clients for his “innovative ideas” and “proactive approach” (JUVE Directory of German Commercial Law Firms).

Dr. Nina Bogenschütz

Attorney at law

Adviser to numerous prestigious domestic and foreign companies on day-to-day corporate law matters, issues of employment law and in the course of transactions. Design and reorganization of innovative company pension schemes. Conception and implementation of flexible human resources regulatory instruments. Particular expertise in seeing through complex restructurings. Representation in dispute situations.

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