Issues relating to labour and employment law
Due to the rising number of infections and corresponding instructions issued by the official medical authorities, there will be an increase in isolation measures which will result in more employees being absent from the workplace for longer periods of time.
In principle, we have identified the following case groups:
If an employee has been diagnosed as having the COVID-19 virus (or another influenza illness), the rules for continued remuneration in the event of illness apply. This involves the entitlement to continued remuneration for a period of six weeks (Section 3 of Germany’s continued remuneration law [Entgeltfortzahlungsgesetz – EFZG]). After this period, people with statutory health insurance are generally entitled to sickness benefit. Both employees and employers undertake to report the illness to the respective competent public health authorities.
If an employee is infected with the coronavirus or has been instructed by the authorities to self-isolate, the employee may be entitled to compensation in accordance with Section 56 of Germany’s law on infection protection (Infektionsschutzgesetz – IfSG).
The compensation corresponds to the amount and duration of payment of the normal statutory continued remuneration in case of illness (six weeks) and is – initially – to be paid by the employer. The employer will be reimbursed for this by the competent authority on request (list of authorities) (Section 56(5) IfSG).
Employers must submit applications for reimbursement to the competent authorities within three months of the employee stopping work (download application form).
Applications are expected to be made via the application system within payroll accounting. We will notify you as soon as more detailed information is available and the technical provisions are created.
If an employee is suspected of having the coronavirus (without a concrete diagnosis) and is then withdrawn from the company, they are entitled to loss of earnings. The amount of the loss of earnings corresponds to the last net salary earned. The amount is initially paid by the employer, who can submit an application for reimbursement within three months in accordance with Section 56 IfSG. Compensation claims can only be made, if employment has been prohibited or self-isolation has been prescribed for reasons pursuant to infection protection law. In addition to the loss of earnings, independent professionals can also be compensated “to an appropriate extent” for operating expenses in accordance with Section 56(4) IfSG. Employees are entitled to the amount of their net salary for the first six weeks, and to sickness benefit thereafter. When filing an application, it should be noted that claims under Germany’s infection protection law are subsidiary to all other claims for financial compensation. Pension, health, nursing care and unemployment insurance are still compulsory.
If employees, who were previously symptom-free, fall ill during the self-isolation period, they will be unable to work. In this case, claims for compensation due to incapacity for work (e.g. entitlement to continued remuneration) are transferred to the federal state. In case of incapacity for work, a certificate of incapacity is required despite self-isolation.
If employees in this situation still have holiday entitlement or overtime, they can take holiday and receive holiday pay for this time. If there is no holiday entitlement left, employees can take unpaid special leave.
Note:
In the case of unpaid leave, employees must take out health insurance for themselves no later than four weeks after the commencement of the leave, as they are no longer legally insured through the employment relationship due to lack of contributions paid.
Irrespective of the conditions under labour and employment law, it is important to first ensure that your business is able to continue to operate. This is why it is especially important that solutions are flexible. For example, companies can assess whether employees can work at home or whether temporary work accounts can or should be set up.
We are happy to support you with regard to the setup of possible models under labour and employment law.
If the childcare facility is closed but the child/children is/are not ill, employees must look for an alternative childcare solution (e.g. care by another parent). If the necessary childcare still cannot be provided, employees may normally have the right to refuse to work, as it would be unreasonable to expect them to perform their usual duties.
In these cases, employees are released from the obligation to perform their contractual services; it is not compulsory to take leave. It should be noted, however, that an employee’s right to refuse to work for reasons of personal incapacity can only give rise to a claim for continued remuneration under strict conditions. Entitlement to such a claim for remuneration can arise under Section 616 of the German Civil Code (BGB) for a relatively trivial period of time. However, this claim under Section 616 BGB can be restricted or even completely excluded by employment or collective agreements.
As in the case of voluntary self-isolation, employees can take leave and receive holiday pay for this time. If there is no holiday entitlement left, employees can take unpaid special leave.
It is also necessary in this case to find solutions together with the employees concerned in order to maintain productivity and the capacity to work.
If employees cannot be employed for operational reasons (operational risk theory, Section 615 sentence 3 BGB), e.g. as instructed by the public health authorities, an interrupted supply chain or temporary cessation of operations, the employer undertakes to provide continued remuneration.
The official instruction to self-isolate can lead to a de facto closure, e.g. if all employees are affected by self-isolation measures. However, closure may also be considered without an official instruction (e.g. in the event of confirmed cases of illness and/or infection in the workplace) if proper and safe operation can no longer be maintained with the remaining employees. In this respect employers must fulfil their duty of care.
Employees cannot be absent from work due to the virus outbreak. For employees to be entitled to refuse to work, it must be determined that it would be unreasonable to expect them to perform their duties in accordance with Section 275(3) BGB. This may be deemed unreasonable, for example, if the work represents a considerable objective danger for the person concerned or at least a serious objectively reasonable suspicion of endangering the life or health of the person concerned.
If employees cannot reach their (unencumbered) workplace and cannot perform their work due to general measures in place, they are strictly not legally entitled to payment of the agreed remuneration. Employees bear the risk of arriving at the establishment as their place of work.
Workers who are able to work may in principle be obliged to work overtime if a large number of workers are absent due to COVID-19 thereby jeopardising an order/project. If there is no employment or collective agreement provision on the payment of overtime, employees can request basic remuneration for the overtime in accordance with Section 612 BGB. Entitlement to remuneration for overtime requires that the overtime was ordered, approved or accepted by the employer and was in any case necessary for the performance of the contracted work.
- Employees have no legal entitlement to work at home.
- Liability/insurance: Evidence must be provided to prove that the injury is directly related to the job.
- Equipment/facilities: Equipment should be provided by the employer, but private funds may also be used and the specific costs (telephone calls) can be invoiced.
- Employee’s duty of care: Employees must observe the rest periods and maximum working hours.
The employment contract stipulates whether and to what extent business trips can be requested. Employees are not entitled to cancel business trips out of “fear of the coronavirus”. However, employers must guarantee their duty of care and, in case of doubt, be guided by official statements regarding affected areas.
If employees need to remain at home due to the closure of their child/children’s day-care centre or school, they must be entitled to work at home. This is because employees are in principle obliged to make every effort to seek alternative childcare arrangements. If it is not possible to arrange for employees to work at home or alternative childcare, the German Trade Union Confederation (DGB) defines younger children as representing personal prevention through no fault of the employee themself within the meaning of Section 616 BGB.
“The person obliged to perform services is not deprived of his claim to remuneration by the fact that he is prevented from performing services for a relatively trivial period of time for a reason in his person without fault on his part. However, he must allow to be credited against him the amount he receives for the period when he is prevented under a health or accident insurance policy that exists on the basis of a statutory duty.”
This claim is only valid for a few days and may already be excluded by clauses in the employment or collective agreement. If employees, e.g. as a result of the closure of a day-care centre/school, do not comply with their duty to work, Section 616 BGB may have to be observed.
Employees have no legal right to bring the child under their care to the workplace.
Employees may not independently withdraw the leave already approved due to the current situation. This must be agreed with the employer. Nor can the employer insist on compulsory leave, since it is intended for recreational purposes. A temporary leave of absence, on the other hand, can be considered, but this does not affect holiday entitlements.
If the health authorities contact the employer (regarding a sick employee), the duties of confidentiality and data protection obligations must be observed. However, in order to prevent communicable diseases, there may be an obligation to disclose personal data if information is required by the health authorities as part of the emergency response in accordance with Section 16 IfSG (e.g. if contact tracing is required because several workplaces are affected).
According to Section 25 IfSG, the public health authorities can initiate the necessary investigations into the type, cause, source of infection and spread of the disease if it is suspected. As part of the investigation into the traceability of the source of infection or containment of its spread, both the person concerned and third parties, in particular the attending physician, may be questioned in order to determine potential contacts.
This might result in a conflict with the duty of confidentiality according to Section 57(1) of Germany’s law on tax consultancy (Steuerberatungsgesetz – StBerG) or Section 5 of Germany’s federal chamber of tax consultants’ professional code of conduct (Berufsordnung der Bundessteuerberaterkammer – BOStB), which can be resolved by limiting the disclosure to what is directly necessary by merely providing the contact details. The information should in principle be kept as brief as possible. The statutory disclosure requirement according to Germany’s law on infection protection (IfSG) takes precedence in cases of conflict.
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