Topic: Employment

In order to protect the employment in time of spreading the COVID-19 epidemic, further emergency measures were adopted by the Government of the Czech Republic yesterday (i.e. on 23 March 2020). These measures, among others, are consisting in extension of the Compensation Package for Employers. This “Compensation Package” is a state financial support to employers that have to incur costs of paying wages to employees even when their business is significantly affected by the impact of governmental measures adopted in connection with the declared state of emergency. Please find below an overview of the three new compensatory measures adopted.

If the reason for the obstacle to work on the employer’s side is „Reduced demand for services, articles and other products of the company”, the amount of wage compensation provided by the employer is at least 60% of the employee’s average earnings and the amount of the state contribution is 50% of the wage compensation provided by the employer.

If the reason for the obstacle to work on the employer’s side is „Childcare or Quarantine Ordered to a significant part of employees (at least 30% of employees)”, the amount of wage compensation provided by the employer is 100% of the employee’s average earnings and the amount of the state contribution is 80% of the wage compensation provided by the employer.

If the reason for the obstacle to work on the employer’s side is “Limitation of the availability of inputs, i.e. material, products and services which are necessary for its activities”, the amount of wage compensation provided by the employer is 80% of the employee’s average earnings and the amount of the state contribution is 50% of the wage compensation provided by the employer.

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Please note that the above-mentioned compensatory measures complemented the measures already adopted as of 19 March 2020 which, for clarity, are summarized below:

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If the reason for the obstacle to work on the employee’s side is „Quarantine ordered to an employee”, the amount of wage compensation provided by the employer is 60% of the employee’s average assessment base and the amount of the state contribution is 100% of the wage compensation provided by the employer.

If the reason for the obstacle to work on the employer’s side is „Inability to assign work due to enterprise closure as a result of adopted emergency measures” (an obstacle under Section 208 of the Labor Code), the amount of wage compensation provided by the employer to is 100% of the employee’s average assessment base and the amount of the state contribution is 80% of the wage compensation provided by the employer for 10 days period.

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The state contributions shall be provided to employers on the basis of an agreement concluded with the respective Labor Office of the Czech Republic retroactively. Employers shall apply for contributions for March at the beginning of April.

The Ministry of Labor and Social Affairs shall prepare and adopt a methodology for claiming and paying the above-mentioned contributions by the end of this week, as well as a sixth compensatory measure under which the state shall pay a positive incentive bonus to employers who are operating fully, despite of the difficult situation.

If you have any questions regarding the state compensation in the area of employment or regarding other measures that an employer can use in the current difficult situation, please do not hesitate to contact us. More specifically, please contact our attorney-at-law, Lenka Droscová, who specializes in labor law.

Shielding business from crisis. Revision of COVID-19 special-purpose act – labour law and salary subsidies

As the Polish government continues to work on the revision of the COVID-19 special-purpose act, we have prepared an overview of the proposed changes regarding employer support in the face of the coronavirus crisis.

Salary subsidies

Paid from the budget of the Guaranteed Employee Benefits Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych)

The government would cover a part of salaries of employees (working on the basis of employment contracts, mandate contracts and other civil-law contracts with social security coverage) whose jobs have been put on hold or working hours cut, and their social security contributions in part paid by the employer for a total of 3 months following the execution of the subsidy agreement.

The government pledges to meet:
– no more than 50% of minimum pay (PLN 1300) of employees whose jobs have been put on hold;
– 50% of pay, but no more than 40% of average monthly pay from the preceding quarter (PLN 2079.43) in the case of employees whose working hours have been cut (by 20%, but no more than to 0.5 of a full-time position).

The subsidies would be paid as long as the employee’s job remains on hold or working hours cut in consequence of a turnover drop caused by the COVID-19 outbreak, defined as a drop in the value or volume of goods/services sales of:
– at least 15%, calculated as the ratio between the total turnover generated over the period of any 2 consecutive months after January 2020 and the total turnover generated over corresponding 2 months of the preceding year; or
– at least 25% over one month after January 2020, compared to the preceding month.

Paid by poviat heads (poviat employment agencies)

Poviat heads would cover a part of salaries and social securitycontributions paid by SMEs in the case they record a turnover drop caused by the COVID-19 outbreak over any 2 consecutive months after January 1, 2020, compared to the total turnover generated over any 2 consecutive months of the preceding year; the subsidies would be paid for up to 6 months in the case of micro and small enterprises and 3 months in the case of medium enterprises.

The level of subsidies would be tied to the size of the drop:
– at least 30% turnover drop – subsidies equal to the product of the number of employees and 50% of minimum pay,
– at least 50% turnover drop – subsidies equal to the product of the number of employees and 70% of minimum pay,
– at least 80% turnover drop – subsidies equal to the product of the number of employees and 90% of minimum pay.

In order to qualify for the above-described support, businesses will need to satisfy a host of other conditions, which are too big a topic to discuss here in detail.

Periodic health examinations determining employee’s ability to work

The government has proposed to suspend the obligation to undergo periodic examination and examination following dealing with hazardous substances, as well as the requirement to hold a valid doctor’s certificate in order to be allowed to work. The examinations are to be carried out no later than 60 days after the state of epidemic threat or epidemic is called off.

Examinations upon returning to work after an absence and before starting a job are still required, however, if a doctor authorized to carry out such examinations and issue certificates is unavailable, the employee may visit a different medical practitioner.

Additional care allowance

Employees who need to take time off to take care of a child below 8 would be entitled to additional care allowance of 14 days (added to the days already granted on the basis of the special-purpose act before the amendment).

Additional care allowance would be also provided over a period of 14 days to:
– insurance holders who need to look after a person with diagnosed moderate to severe disability until they come of age or with diagnosed disability;
– insurance holders who are given time off to look after a disabled adult.

It is also suggested that the Ministers Council should be able to extend the time limits stipulated in the special-purpose act for as long as day care facilities remain closed.

Applying less favourable employment terms

The government proposes that employers, who reported a specified turnover drop and have no arrears in the payment of taxes, social insurance contributions, health insurance contributions and other financial obligations (with some exceptions) by the end of 3rd quarter of 2019, should be able to:
– cut the minimum daily period of rest to no less than 8 hours (compared to 11 hours) and the minimum weekly period of rest to no less than 32 hours (compared to 35 hours), covering at least 8 hours of uninterrupted daily rest; the employee would be able to take advantage of the difference between 11 hours and the reduced period of rest within 8 weeks at the latest;
– enter into an agreement with trade unions or employee representatives (if a company does not have any trade unions) on applying employment terms less favourable than the ones stipulated in employment contracts to the extent and for a period of time specified in such agreement.

Contact us in case of any questions.

1. Per GEO no. 30/2020, during the state of emergency, for the period of suspension of the individual employment agreements initiated by the employers due to technical unemployment caused by the effects produced by COVID-19, the affected employees shall benefit from an indemnity of 75% of the basic salary corresponding to the occupied job, which will be borne from the unemployment insurance budget (but no more than 75% of the medium gross salary provided by Law no. 6/2020 on the state social security budget for 2020).
2. The employers must meet the following conditions:
• the employers decide the total or partial discontinuity of their activities based on decisions issued by the competent public authorities as per the applicable legislation, during the state of emergency (in this case, a certificate of emergency situations issued by the Minister of Economy, Energy and Business Environment is required); or
• the employers reduce their activities due to the effects of COVID-19 epidemic and do not have the financial capacity to pay all the salaries to their employees, the indemnities being covered by the unemployment insurance budget for maximum 75% of the employees having individual employment agreements active at the date of entering into force of GEO no. 30/2020 (in this case, an affidavit given by the employer is required from which must result the decrease of incomes of minimum 25% in comparison to the average incomes afferent to the period January – February 2020 and the lack of financial capacity to pay all employees).
3. The indemnity is subject to taxes and other mandatory social contributions that shall be calculated, retained and paid from the indemnities received from the unemployment insurance budget.
4. In order to obtain the amounts representing indemnities, the employers shall submit a series of documents having the form and content provided by the annexes to GEO no. 30/2020.

One of the main concern of employers is, obviously, the measures required for the protection of the health and safety at work, regulated in Italy by the Legislative Decree 81/2008.

In fact, although the risk for workers to contract the COVID-19 does not directly derive from the type of job performed and is not exclusively related to the healthiness of the workplace – as the contagion can occur in the same way both in the workplace and outside of it – it is necessary for the employer, depending on the company’s specific structure and in accordance with the company’s safety delegates, to provide precise operational indications in line with the principles of precaution and proportionality aimed at increasing the effectiveness of the containment measures adopted in order to defeat the COVID-19 in non-healthcare work environments.

In this scenario, it has intervened the Prime Minister’s Decree dated 11 March 2020 which, in addition to the suspension of the non-productive activities, provides that the operating employers shall: (i) adopt anti-infection safety procedures and, where it is not possible to respect the interpersonal distance (1 meter, at least) as the main containment measure, give to the employees individual protection instruments (e.g. masks, goggles, gloves, etc.); and (ii) promote and carry out operations of workplaces sanitization, by also using social safety nets described above.

In this respect, on Saturday 14 march 2020, the Italian Government and the representatives of Trade Unions entered into a memorandum of understanding containing the measures to which the employers shall comply with in order to continue their working production activities by ensuring the maximum safety and protection to the involved workers among which, inter alia, the workers’ access controls to the workspaces (e.g. body temperature monitoring), cleaning and sanitization of work environments, contacts’ reduction with external suppliers, hands hygiene, closure of non-necessary business units and promotion of the smart working modalities, restricted access to common areas (e.g. canteens, locker rooms, etc.), temporary stop to business trips and meetings, different scheduled entry/exit times, etc.

Furthermore, the Prime Minister Decree dated 22 March 2020 has suspended all industrial production activities and commercial activities, except essential ones (indicated in the attachment to the decree), and provides that the activities not suspended shall comply with the above mentioned memorandum of understanding dated 14 march 2020.

Given the above, it would seem to be implicit the obligation for companies to carry out a new biological risk assessment (with the technical support of the persons in charge such as e.g. Head of the Prevention and Protection Service (Responsabile del Servizio Prevenzione e Protezione – RSPP), competent doctor and workers’ safety representative (Responsabile dei lavoratori per la sicurezza – RLS), etc.), with consequent updating of the Risk Assessment Document (Documento di Valutazione dei Rischi – DVR) with the indication of all the safety measures implemented by the employer in order to prevent the risk of contagion.

In any case, it would seem necessary at least providing the workers in force with an information notice  containing the information on the biological risk and on the hygiene measures, the relevant instructions for the use of Individual Safety Devices provided (such as e.g. masks, goggles, gloves, etc.) and the methods for reporting to the competent authorities any suspicious cases of COVID-19.

In addition, we deem useful to point out that, hypothetically, if a contagion in the workplace would occur due to a violation of the employer’s obligations from which result the worker’s death or illness (lasting more than 40 days), the employer could be considered liable also from a criminal point of view.

Finally, for companies that have adopted an Organizational Model pursuant to Legislative Decree no. 231/2001, it is advisable to support an information of reporting to the Supervisory Body (Organismo di Vigilanza – OdV) in relation to: (i) the prevention and protection measures; and (ii) the adoption of specific prevention measures deemed appropriate. In such a way, the Supervisory Body could assess whether implement or modify the company’s Organizational Model.

During these days, one of the major business issues is the management of the human resources in order to balance the safeguard of the employees’ health and public health with the organizational/production needs.

Smart working

The Prime Minister’s Decree dated 9 March 2020 extend to the entire national territory the restriction of the movement of individuals “without prejudice to the work-related reasons motivated by proven needs or other situations of need or for health reasons”.

In this respect, workers seem to be free to move by completing and using a self-certification available at the following link https://www.interno.gov.it/sites/default/files/allegati/modulo-autodichiarazione-17.3.2020.pdf.

However, the Prime Minister’s Decree dated 11 March 2020 has suspend some activities (retails, restaurants, hairdressers, etc.) and provides that “with regard to the production activities and professional activities it is recommended that: 1) maximum implementation by companies of the smart working mode for activities that can be performed at home or in remote”.

Moreover, the Prime Minister Decree dated 22 March 2020 has suspended all industrial production activities and commercial activities, except essential ones (indicated in the attachment to the decree), and provides that the activities suspended „can in any case continue if organized with remote or smart working„.

Therefore, with the exception of activities not suspended that requiring the physical presence of the employees, the main instrument to be used is the so-called smart working, which – in our legal system – has been formally introduced by Articles 18-23 of Law 22 May 2017, no. 81 (Law no. 81/2017). In order to implement such a working modality, the Law no. 81/2017 provides that the employer must enter into an agreement with the worker (or with the Trade Unions) and make an arrangement on the minimum smart working requirements, such as e.g. duration, withdrawal, timing, modalities, controls, etc.).

As stated above, the Prime Minister’s Decree of 8 March 2020 – which provisions had been extended to the entire national territory by Prime Minister’s Decree dated 9 March 2020 – establishes that „the smart working mode governed by Articles 18 to 23 of Law No. 81 of 22 May 2017, may be applied, for the duration of the state of emergency […] by employers to all employment relationships, in compliance with the principles contained into the aforementioned provisions, even in lack of the individual agreements provided for therein; the [health & safety] obligations under Article 22 of Law no. 81 of 22 May 2017 are electronically fulfilled, also by using the documentation made available on the website of the National Institute for Occupational Accident Insurance [(INAIL)]”.

In few words, this provision allows the simplified smart working activation without prior agreement with the worker (or Trade Unions) and consequently without his consent, with the following obligation for the employees to comply to the employers’ directives.

Therefore, the employer who intends to implement smart working shall provide:

1. the communication to the workers, fulfilling the health and safety information obligations by sending electronically to them (also via e-mail) the related information on health and safety during the smart working period, according to the ones published on the INAIL website (https://www.inail.it/cs/internet/comunicazione/avvisi-e-scadenze/avviso-coronavirus-informativa.html);
2. the telematics communication according to the procedure indicated at the following link https://servizi.lavoro.gov.it/ModalitaSemplificataComunicazioneSmartWorking/, uploading – instead of the agreement with the worker – a self-certification that the smart working refers to a person belonging to a risk areas.

Despite the provisions of the Prime Ministry Decree 8 March 2020 exempt the employers from the obligation to enter into an agreement with the employees, it is still required to fulfill the other provisions contained into Articles 18-23 of Law no. 81 of 22 May 2017: therefore, the employers must provide to the employees a communication containing the indication of the working hours, the right to disconnection, the operating procedures, the IT tools to be used and the employer’s control powers.

Without prejudice to the foregoing, in order to be able to quickly implement this working modality, in our opinion it should be appropriate, in any case, for a better protection of both the employers and the employees, to proceed – as soon as possible – with the drafting of the above mentioned agreement.

Holidays and paid leave

The economic situation may, on the other hand, give rise to the need for the employer not to use all the available human resources. In this respect, the Prime Minister’s Decree dated 8 March 2020 merely states that “where possible, employers are recommended to encourage the use of periods of paid leave or holidays” and the Prime Ministerial Decree dated 11 March 2020 that „holidays and paid leave as well as other collective instruments shall be encouraged„.

In relation to the accrued holidays, the employer can freely determine the period during which they should be used by the employee, considering the interests of the latter. In any case, please note that a forced allocation of them with short notice could be challenged by the employees. On the other hand, accrued and unused paid leave cannot be allocated unilaterally (under any circumstance) to the employees, but a mutual agreement could be reached by the parties.

Income and labour market support instruments

In case of deeper crisis, income and labour market support instruments such as ordinary redundancy funds and solidarity funds can be used.

On this point, it should be highlighted that the Law Decree 17 March 2020, no. 18, introduced extraordinary “Measures to reinforce the National Health System and economic support for families, workers and business related to the epidemiological COVID-19 emergency” adopting, inter alia, some economic measures in the labour field, as by way of example:

• extension of Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) and Assegno Ordinario (ordinary allowance): the eligible employers, who suspended or reduced their business activities during the year 2020 due to the epidemiological COVID-19 emergency, can access to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, by indicating in the request cause “COVID-19 emergency”, for a period starting from February 23, 2020 for a maximum duration of 9 (nine) weeks and, in any case, within the term of August 2020 (art. 19);
• extension to every employer of Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund): all of the employers, who do not meet the requirements for accessing to the Cassa Integrazione Guadagni Ordinaria (Ordinary Wages Guarantee Fund) or to the Assegno Ordinario (ordinary allowance) measures, can access to the Cassa Integrazione Guadagni in deroga (Layoff Wages Guarantee Fund), subject to the recognition by the Regions and Autonomous Provinces of the state of emergency and according to an agreement entered into with the most comparative Trade Unions at national level (which can also be concluded in an electronic way), for the duration of the suspension of the employment relationship and, in any case, for a maximum period not exceeding 9 (nine) weeks (art. 22).

In addition, the above mentioned Law Decree provides also for some additional benefits and allowances for the professionals, VAT holders, tourism and agricultural sectors and introduces some extraordinary measures on parental leave, babysitting, etc.

Last, it should be noted that, for a period of 60 (sixty) days, all of the collective dismissals and the ones due to objective economic reasons (Giustificato Motivo Oggettivo) are not allowed and all the pending collective proceedings started after February 23, 2020 are suspended for the same period of time (art. 46). Therefore, only disciplinary dismissals for just cause (Giusta Causa) or for justified subjective reasons (Giustificato Motivo Soggettivo) seem to be allowed.

1. Introduction of the Employment Bridging Emergency Fund (NOW)

In light of the economic consequences of the coronavirus, the Employment Bridging Emergency Fund (Noodmaatregel Overbrugging voor Werkbehoud – NOW) has been introduced with immediate effect. The NOW provides for temporary wage cost subsidy for employers that are impacted by a drop in turnover. The NOW has retroactive effect from 1 March 2020.

2. Withdrawal of short-time working scheme

The short-time working scheme (regeling werktijdverkorting – wtv) has been withdrawn with immediate effect. Applications already filed for the short-time working scheme will be handled as applications for the NOW.

3. NOW conditions

Two conditions apply to the NOW: (i) you expect a drop in turnover of at least 20% as from 1 March 2020; and (ii) you will not lay off any staff on economic grounds during the period in which the NOW can be relied on.

4. Duration of the NOW

The NOW applies for a period of three months. One extension of a further three months is possible. Further conditions may be attached to that extension. It is not yet clear what exactly those conditions will be.

5. Amount of the NOW

The contribution amounts to 90% of the payroll total in the event of a drop in turnover of 100%. If the drop in turnover is lower, the contribution is determined pro rata to the drop in turnover. It is not yet clear exactly which remuneration components are counted in the payroll total.

6. Flexible contracts

Unlike in the short-time working scheme, flexible contracts, such as agency contracts and stand-by contracts, also fall within the scope of the NOW. That is of course favourable for sectors in which flexible contracts are frequently used, such as the hospitality industry.

7. Advance

The contribution under the NOW is awarded as an advance. The advance amounts to 80% of the expected contribution. If, for instance, a 50% drop in turnover is expected, the advance amounts to 36% of the payroll total. The exact drop in turnover is determined at a later time. A correction may be made when the final contribution is determined.

8. Applying for the NOW

Applications for the NOW must be filed with the UWV (Employee Insurance Agency)It is not yet possible to file an application. You will be informed as soon as that is possible. Applications in excess of an amount yet to be determined require an auditor’s report. If you have already filed an application for the short-time working scheme, you need not file a new application for the NOW.

9. Consequences of the NOW for employees

Employees are entitled to continued payment of their entire wages during the term of the NOW. Unlike the short-time working scheme, the NOW does not affect their unemployment benefits entitlement.

10. Self-employed persons

The NOW does not apply to self-employed persons. The Besluit bijstandverlening zelfstandigen (Social Assistance (Self-Employed Persons) Decree) applies to self-employed persons who are forced to cease their operations.

If you have any questions about the employment law consequences of the coronavirus, please contact our partner employment law Elias van Kampen at elias.vankampen@actlegal-fort.com.

The state of emergency was instituted in Romania for a period of 30 days as of 16 March 2020 (i.e. the date when Decree No. 195/2020 establishing the state of emergency in Romania was published in the Official Gazette).

We have included below a short review of the main measures provided by the state of emergency decree from an employment law perspective:

1. Measures for the social protection of employees and their families in the economic sectors where the activity is affected or halted totally or partially by decisions of public authorities, during the emergency state, shall be established by way of order of minister of the Ministry of Labour and Social Protection;
2. Private companies will implement work from home or telework during the state of emergency, where possible, by employer’s unilateral decision;
3. Inspections of the Territorial Labour Inspectorates at employers shall be suspended, except for specific cases expressly provided under the Decree (i.e. inspections ordered by the ministry of labour and social protection, inspections ordered by the Labour Inspection for the enforcement of the decisions of the National Committee for Special Emergency Situations, necessary inspections for events having an increased degree of social danger and inspections for investigating work accidents);
4. The validity of the Collective Bargaining Agreements and of the collective agreements (Romanian: acorduri colective) shall be maintained during the emergency state.

Furthermore, the Decree expressly provides that (i) measures may be adopted for supporting the economic operators affected by COVID-19 and (ii) the Govern may support the employers and the employees affected by the effects of COVID-19 crisis, by way of derogation from general legal provisions in force.

In addition to the above, considering school closing given the COVID-19 pandemic, the Romanian Parliament passed Law No. 19/2020 on granting paid leave to parents for child surveillance, in case of temporary closing of education establishments, as further amended and supplemented by Emergency Ordinance no. 30/2020 (“Law 19/2020”) and the Government adopted the Government Decision No. 217/2020 for the implementation of Law 19/2020 (“Implementation Norms”), including the following measures:

paid leave shall be granted to one of the parents for children surveillance in case of temporary closing of education establishments where the children are registered, entailed by adverse weather conditions or other extreme situations declared by the relevant competent authorities; the conditions for granting paid leave are as follows:

• the respective parents must have children aged up to 12 years or children with disabilities aged up to 18 years registered with an educational establishment; and
• the parents’ job does not allow working from home or teleworking;

The term “parent” within the meaning of Law 19/2020 is wider and includes also, for example: the adopter, the person entrusted with the child / children for adoption purposes, the parent or the legal representative of the adult with disabilities registered with an educational establishment;

the provisions of Law 19/2020 are not applicable in case one of the parents (within the meaning of Law 19/2020) is (i) on parental leave, (ii) on paid / unpaid leave or (iii) the personal assistant of one of the dependent children, nor in the case of parents in technical unemployment (Romanian “somaj tehnic”) or in case one of the parents does not have a taxable income;

special rules apply in case of parents working in units that must ensure continuity during the state of emergency;

the right to paid leave applies for the entire period during which the respective educational establishments are closed given the authorities’ decision. Paid leave shall be granted to one of the parents for the working days until the end of the state of emergency, with the exception of the working days during school holiday;

the indemnity for each day off amounts 75% of the base salary corresponding to a working day without however exceeding the correspondent per day of 75% of the medium gross salary used for substantiating of the social security state budget; and

the indemnity is paid from the chapter afferent to the personnel expenses of the employer’s income and expenses budget. The employer shall then settle the amounts paid for the indemnities (net values) from the Guarantee fund for payment of salary debts, as per the procedure provided under the Implementation Norms.

The coronavirus has the Netherlands and the rest of the world in its grip. As of March 12 2020, additional measures apply that are also relevant to employers. Since the number of infections in the Netherlands is rapidly increasing, we will answer the ten most frequently asked employment law questions regarding the coronavirus in this blog.

1. Can employers force their employees to work from home?

As of 12 March 2020, the authorities advise employees to work from home whenever possible. Employers may obligate their employers to do so in these circumstances. It must of course be possible for the employees in question to work from home. Also, the employer must ensure that the obligations under working conditions and working hours legislation are observed also at home. Employees who show any symptoms, such as a runny nose, coughing and fever, are required to stay at home.

2. What precautions must employers take against the coronavirus?

Employers must protect the health and safety of their employees. Employers are therefore expected to protect their employees as far as possible against infection with the coronavirus. Employers will have to take precautions for that purpose. As of 12 March 2020, assemblies at work that are attended by more than 100 persons are no longer permitted. Other precautions may include distributing disinfecting hand gel to employees, giving hygiene instructions and advising employees against travelling to risk areas.

3. Can employers obligate employees to take leave?

No, that is not possible. Employers cannot obligate employees to take leave.

4. Must employers continue to pay their employees’ salaries if they are required to remain in quarantine?

Yes, in principle employers must continue to pay the salaries of employees who are required to remain in quarantine. If employees who cannot or may not work from home nevertheless stay at home because they are afraid of being infected with the coronavirus at work, the obligation to continue to pay their salaries does not apply.

5. May employers prohibit employees from travelling to risk areas in their private time?

No, that is not possible in principle. Employers may of course inform employees in writing about risk areas and advise them not to travel there. They can state, for instance, that if employees nevertheless travel to a risk area, the consequences, if any, are at their risk.

6. May employers force employees to submit to a coronavirus test?

No, only a company doctor may do so. The privacy rules continue to apply. The coronavirus has not changed them.

7. Can employers get financial support to pay wages?

With effect from 1 March 2020, Employers may apply for the new temporary Employment Bridging Emergency Fund  (Noodfonds Overbrugging Werkgelegenheid, or NOW), which provides for financial support for employers to pay their employees’ wages during the corona crisis. Companies that expect a turnover loss of at least 20% may claim a compensation for their wage costs for a period of 3 months. This 3 months’ period may be extended for another period of 3 months. Employers may claim a maximum of 90% of their wage bill, depending on how much turnover they  lost. In order to be eligible for this financial support, employers must promise that they will not dismiss employees for economic reasons during the period in which they receive the support.

8. Are employees entitled to leave if the schools of their children close due to the coronavirus?

Yes, in that case employees are entitled to short-term emergency leave. Emergency leave applies to urgent, extraordinary and unforeseen circumstances. During that leave, employers are required to continue to pay the salaries of the employees in question. If a collective bargaining agreement applies, it may include different or additional provisions. Emergency leave may last from a few hours to a few days. It is therefore not a long-term solution.

9. May employees refuse to come to work for fear of the coronavirus?

Employers may require of their employees that they work at the location agreed on in the employment contract, for instance. Employees may therefore not simply refuse to go to work for fear of the coronavirus. If employees nevertheless stay at home, that may constitute refusal to perform work. Refusal to perform work may be grounds for summary dismissal. That is of course otherwise if the employees are not allowed to come to work because they have symptoms.

10. May employees refuse to travel abroad to attend a business meeting?

That depends on the travel advice issued by the Ministry of Foreign Affairs. Employers are required to make a careful decision in this case. In the case of a business trip to a red risk area, the Ministry of Foreign Affairs advises against travelling there. In the case of an orange risk area, the business trip must be essential.

If you have any questions about the employment law consequences of the coronavirus, please contact our partner employment law Elias van Kampen at elias.vankampen@actlegal-fort.com.

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.