Legal

Corona: Q&A for Employers

Kathrin Reitner Kathrin Reitner

As the Corona virus is spreading, so is the employees' fear of becoming infected at work. May employees work from home or suspend business travel due to fear of infection? What measures may be taken by the employer and who has to bear the costs? In the following, we would like to provide you with some answers to these and other important questions concerning employment law and the impact of the coronavirus.

May employees stay at home to prevent infection?

Employees are not allowed to remain absent from work due to fear of infection with the coronavirus. In case an employee remains absent from work nevertheless, this constitutes a refusal of performance, justifying disciplinary measures or even termination of the employee's contract. Employees are not entitled to stay at home as a preventive measure. The coronavirus does not invalidate governing employment law.

A claim for performance of the employee is solely excluded in case the performance of the employee's duties entails a considerable risk to health and life exceeding the ordinary risk of infection.

Is the employee allowed or, upon order of the employer, obliged to work from home?

Some companies allow their employees to work from home. Each company may decide on their own whether to implement a special regulation for working from home with regard to corona. If no information is provided by the employer, the employee is expected at the contractually agreed premises, which in case of doubt, are the company's premises. In case the employee decides on his own to work from home, the employer is entitled to implement disciplinary measures or even to terminate the employee's contract in specific circumstances.

The employer on the other hand is entitled to instruct his employees to work from home, in case the formal requirements are fulfilled. This may be required as part of the fulfillment of his welfare duties.

An employee was quarantined. Does he still get a salary?

The responsible authorities may take measures to control communicable diseases, such as placing employees under surveillance or even quarantine. In case employees are in domestic quarantine, physically able to work and have the necessary work equipment, they are obliged to work from home, as required by the employees' duty to perform their work in good faith.

In case the employee is not able to perform their work or in case the authorities issue a disqualification from the practice of professional activities, the employer may be obliged to continue payment of remuneration or a compensation, as applicable, according to the German Infection Prevention Law [Infektionsschutzgesetz] for up to six weeks. The amount of compensation depends on the employee's remuneration. The employer may claim reimbursement of the amounts paid according to the German Infection Prevention Law [Infektionsschutzgesetz], where applicable. The reimbursement is subject to submission of the application by due date to the responsible authority. The employee is entitled to a compensation for the loss of earning from the authority in the amount of the sickness benefit from the seventh week.

The company closes temporarily. Is the employer obliged to continue to pay salaries?

In case the employer has to release his employees from their duties, e.g. because of an administrative ruling or because of supply shortages, the employees are released from their duty to perform their work. However, the employer is obliged to continue payment of remuneration according to section 615 para. 3 BGB [German Civil Code] as the employer bears the business risk. The business risk includes external circumstances with impact on the business, e.g. force majeure, including administrative rulings. Employment contracts and collective agreements may include individual regulation for cases in which none of the parties is responsible for the interruption of the business.

Which possibilities exist for the employer to minimise his economic risk?

Short-time Work [Kurzarbeit]: Short-time work might be required due to a difficult economic development or an unforeseeable event. In this case, employees receive a short-time working benefit for a maximum of 12 months. According to the press release of the Federal Employment Office [Bundesagentur für Arbeit], Regional Department Baden-Württemberg, an "interruption of business due to the coronavirus and/or the associated safety measures is usually based on an unavoidable event or economic reasons within the meaning of section 96 para. 1 no. 1 SGB III [German Code of Social Law]. Hence, the interruption of business may be compensated with a short-term working benefit due to economic circumstances." However, all companies are required to report short-time work to the responsible Federal Employment Office [Agentur für Arbeit]. The German Government has decided on March 13, 2020 to adopt the law on short-time work, which shall facilitate the conditions to apply for short-term work. The new law became effective on March 15, 2020 but still needs to be implemented in a governmental regulation, which shall be done, soon.

In case remuneration is to be paid in spite of the employee being prevented from performing services according to section 616 BGB [German Civil Code], the employer's remuneration risk in case of an interruption of the business may be mitigated by including a waiver of section 616 BGB [German Civil Code] in the contractual regulations.

In exceptional cases, where manpower requirement lapses heavily and it is not foreseeable that the employer will require full manpower after a reasonable bridging time, e.g. it is not foreseeable that new orders will be placed after “Corona-crisis”, termination for business reasons might be possible. This is to be decided on a case-by-case basis.

Is the employer entitled to order business trips in affected areas?

In general, the employer is entitled to send his employees on business trips. However, the company's interest must be weighed against the risk to the employees' health, while the protection of the employees' health is of great importance. The employee is not entitled to a general claim of exclusion of his performance. If the employee refuses to travel despite justified instructions, this constitutes a refusal of performance, justifying disciplinary measures or even termination of the employee's contract. If, on the other hand, there is an official travel warning from the Foreign Office, the employee is entitled to refuse business trips.

Employees are currently doing business in an affected area. What are the employer's possibilities/duties?

On account of its welfare duties, the employer must observe the situation in the affected areas, taking into account especially the assessment of the Foreign Office. If required, necessary measures and instructions on how to behave must be provided, e.g. instructing the employees to work from home. The employer is only required to instruct his employees to return home if no equally suitable protective measures are available. In this case, the individual circumstances are to be considered, and a more extensive obligation exists e.g. in case of pre-existing health issues of an employee in a strongly affected area.

The employee wants to travel privately to a risk area. Is the employer entitled to prohibit the trip?

Activities employees pursue during their free time is their private matter. Here the employer may not interfere with the personal rights of the employee and prohibit a trip to a risk area, even if the Foreign Office has issued a travel warning. If the employee returns sick from his or her vacation, the employer is generally obliged to continue payment of the remuneration (statutory sick pay).

However, employees might lose their entitlement to statutory sick pay in case they culpably expose themselves to a risk. According to the Federal Labour Court, culpable behavior is deemed to have occurred in case employees act intentionally or negligently contrary to common sense. This would be the case if an employee travels to a country for which the Foreign Office has issued a travel warning.

In case the employee returns late from his vacation, the employer is not obliged to continue payment of remuneration during this time, as the employer is only obliged to continue payment of remuneration if the employee is prevented from performing services for a reason in his person without fault on his part, according to section 616 BGB [German Civil Code]. The employee bears the commuting risk, e.g. in case of a cancellation of transport. In addition, this might justify disciplinary measures or even termination of the employee's contract. However, if the employee's return is delayed due to circumstances without fault on his part, the employee is not deprived of his claim to remuneration for a relatively trivial period of time according to section 616 BGB [German Civil Code].

Staff shortages due to sick employees. Is the employer entitled to demand overtime or to cancel employees' vacation?

In case of staff shortages due to sickness, the employer is entitled to demand overtime within the legal regulation concerning working time, taking into account especially contractual provisions. However, the employer is entitled to cancel an employee's vacation solely if specific tasks requiring the employee's presence on site may not be delayed in any case. Whether this might be appropriate is to be decided on a case by case basis, taking into account the nature of the employee's work and his level of responsibility within the company. In general, canceling the employee's vacation is only admissible if it is imperative for the company and in case no other option is available.

Are employees required to inform their employer in case they contract the virus?

As usually, the employee is obliged to inform the employer in case of sickness that leads to incapacity to work, which does not include information about the type of disease. However, as the coronavirus is a notifiable disease, the doctor is obliged to inform the medical authorities and put the employee under quarantine, if required. In any case, the employer may ask whether ill employees have been to a risk area. On account of its welfare duties, the employer might direct employees to stay at home for a few days as a precautional measure and to prevent spreading the disease. In this case, the employee is not deprived of his claim to remuneration.

Child is sick or daycare and school is closed because of the corona virus: May employees stay at home?

Employees are obliged to seek replacement for their childcare. In case no other childcare is available, employees may stay home to take care of their children. Taking into account the provisions of section 616 BGB [German Civil Code], the employee might not be deprived of his claim to remuneration. The duration of the obligation to continue payment of the remuneration is determined based on the individual circumstances. Employees are entitled to statutory sick pay in case they have to stay home to take care of a sick or insured child. However, the health insurance company might claim a refund of the amounts paid from the employer in determined circumstances.

Preventive measures: Which measures may be taken by the employer?

Following employer’s welfare duties, employers shall inform their employees about hygiene requirements and conducts appropriate to prevent the coronavirus from spreading. These might include providing disinfectants and masks, as well as suitable measures to provide information concerning hygiene behavior. In addition, the employer is obliged to provide information concerning infection and disease risks, especially if specific information with regard to infection exist, as it is the case with regard to the coronavirus.

If an employee is ill or shows typical symptoms of the infection, e.g. cough and fever, the employer is obliged to send the respective employee home. As this is considered a notification of illness, the employee is entitled to statutory sick pay.

Do self-employed persons receive a compensation if they are unable to perform their duties due to the coronavirus?

In general, self-employed persons bear the risk of incapacity for work themselves. However, in case a company or a surgery closes temporarily due to the coronavirus, self-employed persons might be able to request an appropriate compensation for uncovered expenses as well as a compensation for the loss of earning during this period from the responsible authority.

Conclusion

The coronavirus does not invalidate governing employment law. We highly recommend all employers to implement all available measures for the protection of their employees. On the other hand, employees are obliged to comply with all instructions of the employer and to observe the safety measures implemented by the employer.

Please do not hesitate to contact our experts if you have any questions concerning measures and conduct with regard to the coronavirus.