Many questions about COVID-19 have been clarified in the meantime. In our consulting practice, however, we still receive new variations every day. We ourselves are always amazed at the questions that have not been answered yet. In addition, the first courts have now dealt with COVID-19 issues. In the following, we therefore give you an update on the FAQ on our COVID-19 website.
- What can the employer do about (suspected) working time fraud when employees are working from home?
- Do employees have to come into the office during the coronavirus crisis?
- Can employees be forced to work from home under the new SARS-CoV-2 occupational health and safety regulation?
- What rules apply to employees when working in the office? Are they entitled to their own room?
- Can the employer require its employees to "act in a coronavirus-compliant manner" when they are not at work and sanction misconduct?
- Can attending an anti-coronavirus demonstration have consequences under employment law?
- What can the employer do if employees refuse to comply with hygiene and distance rules or to wear a face mask at the workplace or even thwart such measures?
- Is part-time work an alternative to short-time work (Kurzarbeit)?
- How does the relationship between short-time work and dismissals for operational reasons work?
- Can the employer require its employees to take a coronavirus test?
- Can employers demand that their employees be vaccinated? Is refusal to be vaccinated grounds for termination?
- What incentives can employers provide to encourage their employees to get vaccinated?
- Is video surveillance of compliance with the German AHA rules (keep your distance, pay attention to hygiene and wear a mask) permissible?
- Does the works council have a right to works meetings being held in person and works council meetings being held in person?
- Do employees who have tested positive for COVID-19 who do not have (severe) symptoms receive continued payment of remuneration in the event of illness or compensation under the German Protection against Infection Act (IfSG)?
- How do I, as an employer, deal with persons returning from holidays/trips?
- Continued payment of remuneration or compensation under section 56 (1) a German Protection against Inflection Act (IfSG) for parents with children in quarantine as a precautionary measure?
1. What can the employer do about (suspected) working time fraud when employees are working from home?
The fact that in many sectors people are working from home to a large extent during the coronavirus crisis raises the question of what employers can do if they suspect that their employees working from home are not providing the contractually agreed level of performance. This stems from the fact that monitoring employees working from home is undoubtedly more difficult than monitoring them on the company's premises. Where there is no electronic monitoring system which can also be used by the employees when they are working from home, it is definitely advisable to have employees document the beginning and end of their working hours as well as their breaks.
Before asking about the consequences in terms of employment law, it is first necessary to clarify the circumstances in which working time fraud is deemed to exist. Working time fraud is deemed to be where an employee accepts payment for working time which he has not worked. There are cases, both in the office and when working from home, which most definitely constitute fraud. An employee recording breaks as working time or asking a colleague to clock him in earlier than he actually arrives at work, are obvious examples of fraud. But what about employees having coffee and chatting with colleagues when they are not on a break? In such cases, although it is true that the employee is not working, nobody immediately thinks of working time fraud, at least not if this remains within the boundaries of common practice. Making the occasional short urgent private telephone call will not satisfy the requirements for working time fraud either.
These principles can also be applied to cases where employees are working from home: a short conversation with family members, taking receipt of a parcel or making a cup of coffee are socially acceptable provided these things do not interfere with the employer's work processes. However, supervising a child doing homework, hanging up the laundry or going for a walk during working hours probably go beyond what is permissible. If, however, the employee has flexible working hours and excludes such times from his working hours or interrupts the hours recorded, these activities did not ought to be objectionable in principle. The same applies to trust-based working hours. In such cases, working time fraud is practically completely out of the question.
Working time fraud is both a breach of duty and a breach of trust at the same time if it entitles the employer – where applicable after issuing formal warning – to terminate the employment relationship with notice for reasons relating to conduct (ordentliche verhaltensbedingte Kündigung) or, depending on the circumstances, to terminate the employment relationship without notice for good cause (außerordentliche Kündigung). The big problem for companies is that they have to prove working time fraud. This is usually only easy to do if set working hours are precisely defined. This is not the case in many workplaces. Employees can therefore often easily find excuses. If, however, the employer succeeds in proving fraud by monitoring the recorded time data, this is not a violation of data protection law, see decision of Cologne Regional Court in a case decided on 29 September 2014 (2 Sa 181/14). In the judges' view, the purpose of data protection is not to cover up fraudsters.
If the employer has reasonable suspicion but cannot provide actual proof, a dismissal on grounds of suspicion may be an option. Unlike in the case of a "normal" dismissal, a dismissal on grounds of suspicion does not require the employer to provide full evidence that the employee has committed a criminal offence or a serious breach of duty. Instead the employer can already resort to a dismissal on grounds of suspicion if, although there is a strong suspicion, there is no clear evidence. In such cases termination with notice is not permissible, but termination without notice for good cause can be issued in certain circumstances.
Quite apart from the offence of working time fraud, the problem remains that "low performers" have even better chances of making themselves nice and comfortable when working from home. Employers should try to exclude such employees working from home or limit the time they work from home to what is absolutely necessary.
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2. Do employees have to come into the office during the coronavirus crisis?
In principle, employees do not have a general right to stay away from work when an infection is going round because they are scared of catching it. Employees must appear at the company unless otherwise agreed in their employment contract or under works constitution law.
However, the SARS-CoV-2 occupational health and safety regulation has been in effect since the end of January 2021 and is initially limited until 15 March 2021. It states that in the case of office work or comparable activities, employers must offer employees the option of carrying out these activities at home, unless there are compelling operational reasons to the contrary. However, the regulation does not provide for a corresponding right of employees to work from home. Employees therefore cannot assert a claim to work from home in court. Nevertheless, companies face fines and penalties for violations of occupational health and safety regulations. This obligation imposed by the new occupational health and safety regulation should therefore be taken seriously.
Compelling operational reasons that justify refusal to allow employees to work from home may be based, for example, on the unavailability of required IT equipment or, in some cases, on special data protection requirements. Employers are well advised to carefully document these reasons.
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3. Can employees be forced to work from home under the new SARS-CoV-2 occupational health and safety regulation?
There is no obligation for employees to switch to working from home even under the new occupational health and safety regulation. The legislator simply asks them to make use of the offer if possible. It is also the case for employers that, even during the pandemic, it is not possible to force employees to use their private living space as office space. An instruction to work from home is possible only if a corresponding agreement has been made in the employment contract.
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4. What rules apply to employees when working in the office? Are they entitled to their own room?
For employees who cannot or do not want to work from home, "equivalent protection" must be provided in the workplace. Individual offices should satisfy this requirement. According to a recent decision by the Augsburg Employment Court, employees do not have a right to their own offices during the pandemic, however. The court ruled that it is up to the employer alone to decide how to fulfil its obligations under section 618 German Civil Code (BGB) and how to implement them as it sees fit. As long as corresponding protective measures are in place, employees can generally be reasonably expected to work in one office together with several other people.
If several employees work in the same room, each person must have at least ten square metres to themselves. If this is not possible, the employer must arrange for suitable protective measures such as ventilation or partitions between the persons present. If these protective measures cannot be implemented either, or if the minimum distance of 1.5 metres cannot be maintained at work, medical protective masks or FFP2 masks must be worn, which the company must provide. The same applies if the activities carried out are considered to be a hazard due to increased aerosol exchange.
See also the FAQ of the BMAS dated 25 January 2021.
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5. Can the employer require its employees to "act in a coronavirus-compliant manner" when they are not at work and sanction misconduct?
Employees are free to organise their private lives as they see fit as a matter of principle. The employer does not have a right to interfere with this. Even criminal offences committed outside of work therefore normally have no consequences for the employment relationship. Exceptions are conceivable if the criminal offence has a specific impact on the employment relationship, e.g. if the criminal offence makes it clear that the employee is unfit for the performance he owes. For example, it is possible that a bank employee, who has been convicted of off-duty embezzlement, would be dismissed. In certain circumstances an employee could also be dismissed for losing his driving licence, which he urgently needs for his job, as a result of drink-driving and there is no other area of activity for him at the company. It is also possible that off-duty assaults of colleagues/customers could lead to valid dismissals.
The employer's options for taking action outside of the realm of criminal offences, on the other hand, are limited. An employee has general duties of care towards his company even outside of his working hours and the company, in turn, has a legitimate interest in the conduct of its employees, when they are not at work, being in compliance with the rules if such conduct would otherwise result in dangers for or risks to other employees or customers. To be relevant, however, such conduct would also have to affect the employment relationship and the business operation. Such cases are extremely rare. They might include, for example, off-duty statements by an employee which are defamatory to the company.
In the context of COVID-19 Osnabruck Employment Court recently heard the case of an employee who had privately made fun of the state-imposed coronavirus measures. The employee had sent a selfie of himself and five other men on WhatsApp. In the picture he and his guests are playing cards and sitting close together in a circle on the floor. He had added the caption "Quarantine at my place" to the picture along with a laughing crying emoji. At the time of the incident, extensive contact restrictions were in place to contain the coronavirus. His employer, who had held a works meeting on the COVID-19 safety regulations shortly before this incident to effectively protect its employees, subsequently dismissed him without notice. "Unfortunately" the proceedings were concluded by way of a settlement on the basis of a severance payment of EUR 2,000. No further conclusions can therefore be drawn from this. The company also had to pay him a few weeks' wages for garden leave.
In our view, termination for good cause is likely to be problematic in such cases. Like termination with notice, issuing a formal warning is permissible only if the off-duty conduct has an impact on the professional activity. This has to be assessed on a case-by-case basis.
This begs the question of to what extent the employer may stop the continued payment of remuneration in the case of illness if the employee deliberately puts himself at risk of infection with SARS-CoV-2. According to case law from the highest instance, a claim to continued payment of remuneration is excluded if the employee significantly violated the principles of conduct which can be expected from a reasonable person in his own interest (German Federal Employment Court, decision of 18 March 2015 - 10 AZR 99/14). If an employee fails to comply with the applicable protective measures, this standard of fault will usually be considered satisfied. This does not apply to employees who forget their protective masks on one single occasion when leaving the workplace. However, in our view, people who refuse to wear a mask or who attend what have been christened "corona parties" can be accused of fault. As always, the circumstances of the individual case must be taken into account. For further questions in this connection, in particular also on the question of fault where an employee deliberately travels to a COVID-19 risk area for leisure purposes only, see our blog post.
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6. Can attending an anti-coronavirus demonstration have consequences under employment law?
As far as attending demonstrations is concerned, the following also applies: first, what employees do in their free time is none of the employer's business. Furthermore, the right to freedom of expression and assembly is protected by the German constitution. This also applies to anti-coronavirus demonstrations. Only if attending a demonstration would bring with it disadvantages for the employer or other employees may the conflicting interests be weighed up against each other. An example of this might be where the employee is wearing his work uniform at a demonstration.
In the context of the current anti-coronavirus demonstrations, there have been repeated complaints about the required minimum distance not having been observed. If the employer gains knowledge of this with regard to its employees who attend such anti-coronavirus demonstrations, our comments under 3) above probably apply: employment law measures are only possible if the off-duty conduct affects the employment relationship and the business operation. And this is a question which must be assessed on a case-by-case basis.
The case of the Telekom basketball player Joshiko Saibou caused a lot of commotion in the media in this connection. He and his girlfriend had attended the big anti-coronavirus demonstration in Berlin in August. His club subsequently dismissed him without notice for violating the terms of his then current employment contract as a professional athlete. He had allegedly repeatedly expressed his denialist attitude to the pandemic or to the virus itself on social media channels and also put this attitude into practise at this large demonstration by deliberately violating the well-known rules of protection. In this case, the demonstration was not the only reason for the dismissal, but also his statements as a conspiracy theorist. We considered it unlikely that termination for good cause would stand up in court in this case. We will not ultimately find out though because the proceedings before Bonn Employment Court were concluded by way of a settlement. It is difficult to assess to what extent a formal warning and, as a result of this, termination with notice would have been permissible because not all of the circumstances are known. Aspects which may be relevant here are the risk to other players, e.g. during training sessions, or to his own health as a professional athlete or the fact that Mr Saibou is a person in the public eye representing the renowned club.
The following case was also discussed in the media: a retirement and nursing home in Itzstedt in the Segeberg district had dismissed an employee without notice because she had called in sick due to cold symptoms after attending the demonstration against the coronavirus measures in Berlin and had refused a coronavirus test. The home argued that particularly strict precautionary measures were required in a nursing home and that all members of staff had to abide by them. It said that these include taking a coronavirus test if a staff member has coronavirus symptoms. Detached from the question of the admissibility of obligatory coronavirus tests (see under 8) below), it is unlikely that termination without notice would stand up in court here either. The employer could also have chosen the presumably milder measure of a formal warning, also in view of the particular requirements of nursing care, or could have at least sent its employee home with pay. According to media reports, the employee was still in her probationary period meaning that it will probably not come to a court decision.
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7. What can the employer do if employees refuse to comply with hygiene and distance rules or to wear a face mask at the workplace or even thwart such measures?
The employer is obliged to take protective measures for its employees at the workplace (see section 618 German Civil Code (BGB)). The SARS-CoV-2 Occupational Health and Safety Standard (SARS-CoV-2-Arbeitsschutzstandard) of 20 August 2020 specifies the requirements for regulations at the workplace. The employer must arrange workplaces in such a way that the safety distance of 1.5 m is maintained. The employer must also ensure sufficient ventilation measures, partitions, barriers, and safe walkways and ensure that contact is reduced. If technical and organisational measures do not help to minimise the risk, face masks must be worn. Since 1 December 2020 it has been compulsory to wear face masks in workplaces and on business premises anyway. There is an exception for the actual workplace if a distance of 1.5 metres to other persons can be safely maintained. This is provided for by the resolution of the German Federal Chancellor and the heads of government of the German federal states dated 25 November 2020. Employees refusing to comply with these protective measures can initially be given a formal warning. If this does not help either, termination is possible. Owing to the existing liability risks and the impending financial disadvantages for the employer, we take the view that termination for good cause is even a possibility here in certain circumstances.
If the employee also encourages his colleagues to ignore the employer's hygiene measures, the employer may, after a formal warning, resort to dismissal. This seems proportionate as the employer cannot allow the hygiene measures and concepts it has adopted, which it is under a legal obligation to put in place, to be undermined.
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8. Is part-time work an alternative to short-time work (Kurzarbeit)?
Part-time work with corresponding reductions in pay can, like short-time work, lead to savings at the company and therefore secure jobs. In contrast to short-time work, a general reduction in working hours is not limited to 24 months. There is also no need for a separate salary statement. When they are not subject to the regulations governing short-time work, companies are also more flexible when it comes to responding to order fluctuations. However, the reduction in wages of employees outside of short-time work is not partially compensated for by a short-time work allowance. There is therefore no general answer to the question of whether a general reduction of working hours is the better alternative to short-time work.
Employers wishing to permanently reduce working hours must agree this with the relevant trade union and/or each individual employee. The only unilateral option open to the employer is the option of issuing notice of termination pending a change of contract. However, this type of termination will likely be virtually impossible unless the company is close to insolvency. In addition, termination pending a change of contract requires a certain amount of lead time since issuing a large number of such notices of termination would constitute an operational change requiring an agreement on the reconciliation of interests and a social plan.
When introducing part-time work, the works council should definitely be involved regardless of whether there is a right of codetermination or not. This is because such models only have prospects of success if all of those involved work as one. It also requires a careful advance analysis of what cost savings are necessary and how much employees can realistically contribute. If the measure can be limited in time, acceptance may be greater than in the case of an unlimited reduction in working hours. But this also depends on the respective operation and the interests involved: the better the employees earn and/or the higher their interest is in more leisure time, the more likely it is that the reduction of working hours will be successful, even over a more lengthy or an indefinite period.
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9. How does the relationship between short-time work and dismissals for operational reasons work?
The relationship between short-time work on the one hand and a dismissal for operational reasons on the other involves some pitfalls: employees may doubt the "permanent elimination of the need for employment" required for the dismissal to be effective or consider short-time work to be a milder form of dismissal. By contrast, the Federal Employment Agency may argue that there was not only a temporary, but a permanent loss of work from the beginning and that the conditions for receiving short-time allowance therefore did not exist.
As a rule the following applies: employers are entitled to terminate employment for operational reasons even during periods of short-time work. This means that short-time work does not trigger a blocking effect (German Federal Employment Court, decision of 29 August 2013 – 2 AZR 721/12 –; German Federal Employment Court, decision of 23 February 2012 – 2 AZR 548/10). Due to the "principle of last resort", (strongly) increased requirements are placed on the demonstration of urgent operational requirements within the meaning of section 1 (2) German Protection Against Unfair Dismissal Act (KSchG). In the case of dismissals, a new prognosis is required (permanent elimination of employment needs v temporary situation) which should be recorded in writing in light of the fact that the burden of proof in protection against unfair dismissal proceedings is on the employer. Dismissal for operational reasons during periods of short-time work is therefore only possible if there are new factors which go beyond the reasons for the short-time work. An actual deterioration must have occurred.
The following applies with respect to the short-time allowance: employees who have been dismissed no longer fulfil the personal requirements for receiving short-time allowance. If only some employees are dismissed, this has no effect on the right of the remaining employees to short-time allowance provided that the thresholds set out in section 96 (1) no. 4 German Social Insurance Code III (SGB III) are not understepped.
If, in the context of the dismissals, the Federal Employment Agency comes to the conclusion that the information provided in the notification of the loss of work was incorrect, the employer faces obligations to refund the short-time allowance granted to it and potentially also further claims for damages as well as investigations on grounds of criminal liability or administrative offences. In order to avoid this it is advisable to precisely document the financial situation when applying for short-time work and at the time when dismissals are to be issued.
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10. Can the employer require its employees to take a coronavirus test?
If the employer requires its employees to take a purely preventive coronavirus test without there being any further specific circumstances, it is very likely that this will not be successful. This is because interference in health matters without a specific reason is considered to be disproportionate with regard to the personality right. Even if an employee has actual symptoms and comes to work, the employer cannot simply require him to take a test. This is because doctors and health authorities have the final say on the symptoms which require a test. Only in certain high-risk professions, such as in hospitals or nursing homes, are coronavirus tests likely to be considered to be justified as a preventive measure and at regular intervals.
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11. Can employers demand that their employees be vaccinated? Is refusal to be vaccinated grounds for termination?
In Germany, there is currently no legal obligation to be vaccinated against the coronavirus.
The coronavirus vaccination is therefore also voluntary within an employment relationship and cannot be ordered by the employer. Vaccination constitutes an interference with the physical integrity of the individual and therefore cannot be enforced by way of the authority to issue instructions. This also applies to employees in hospitals and doctors' practices.
Of course, employers may not force their employees to be vaccinated, nor may they make threats, as these would constitute criminal acts. As a matter of principle, they also cannot give notice of termination due to a refusal to be vaccinated. This is conceivable only in very exceptional cases when there is no possibility in the company of employing unvaccinated staff according to employment contract. However, there must in this case also be no alternative reasonable employment option.
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12. What incentives can employers provide to encourage their employees to get vaccinated?
Of course, employers can provide positive incentives to increase their employees' willingness to be vaccinated. For example, it would be conceivable to give employees paid time off to get vaccinated. In many cases, section 616 German Civil Code (BGB) already comes into play here, but not always. Furthermore, employees who are willing to be vaccinated could be granted additional leave. Payment of a vaccination bonus is also possible.
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13. Is video surveillance of compliance with the German AHA rules (keep your distance, pay attention to hygiene and wear a mask) permissible?
Video surveillance at the workplace is not prohibited per se. Open video surveillance is permissible if it pursues a legitimate purpose and is reasonable in the individual case. Clandestine video surveillance is subject to stricter requirements. It is deemed justified only if there is an actual suspicion of a criminal offence or another serious breach of contract by an employee at the workplace and surveillance is the only way to clarify this.
In accordance with these principles, the open use of video technology to monitor compliance with the German AHA rules (keep your distance, pay attention to hygiene and wear a mask) is probably permissible in principle. The reason for this is that the employer is obliged under German occupational health and safety law to draw up and enforce implementation of a hygiene concept. Monitoring employees is therefore legitimate, not least to protect the health of their colleagues. Covert use, however, would generally be ruled out.
However, the use of cameras is subject to codetermination in all companies with a works council. This follows from section 87 (1) no. 6 German Works Constitution Act (BetrVG) as video technology qualifies as technical equipment intended to monitor the behaviour or performance of employees. Beware: even if there is already a works agreement allowing the use of video surveillance as a matter of principle, it will generally still have to be extended to monitoring compliance with the AHA rules. This was recently clarified by Wesel Employment Court (decision of 24 April 2020 – 2 BVGa 40). In this case, there had been a works agreement on the use of video technology since 2013. However, it only defined certain areas of application. Monitoring compliance with the AHA rules was, of course, not considered when the works agreement was concluded and this was therefore not regulated. The court held that a supplement would have been necessary.
Wesel Employment Court held in the aforementioned decision that, with respect to the monitoring of the implementation of the AHA rules, where there is any doubt and in accordance with section 87 (1) no. 7 German Works Constitution Act (BetrVG), the works council must also be involved because these are regulations for the protection of health in the framework of the statutory provisions. The court continued that the evaluation of video recordings constitutes a risk assessment in accordance with section 5 German Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work (ArbSchG) because it specifically serves to determine whether there are any risks.
In the court's view, the coronavirus pandemic and the associated risk to the health of employees did not mean that codetermination by the works council could be dispensed with. It said that although the works council's right of codetermination can be waived exceptionally in urgent cases, this is only possible in sudden extreme cases where it is no longer possible to agree mandatory decisions with the works council in advance. The court said that this was not the case here.
Therefore, employers would be well advised to enter into negotiations with the works council even if there is already an agreement on the use of video technology in principle.
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14. Does the works council have a right to works meetings being held in person and works council meetings being held in person?
In the case of works meetings and works council meetings in person, the answer to this question first depends on the size of the meeting and on the respective provisions at the level of the individual federal state. If the number of persons attending the works meeting falls within the permissible size for events and there is a hygiene concept, as usual, there is much to suggest that no stricter requirements apply to such an in-house event than to a gathering of strangers.
There have been two recent decisions from Berlin with regard to works council meetings in person. The Berlin-Brandenburg Higher Employment Court ruled in August this year that section 129 German Works Council Act (BetrVG) does not contain any provisions providing for the holding of meetings as telephone or video conferences to take precedence as a matter of principle. If the necessary protective measures are taken, the meeting can be held in person. Since secret ballots were to be conducted at the meeting in question, which was not possible as a video or telephone conference, the judge was unable to refer to the online solution in this particular case. The court left open whether in other (individual) cases and in exceptional circumstances the works council can be required to hold a meeting by telephone or video conference to ensure that a meeting takes place. Due to the sharp increase in the coronavirus numbers in the meantime and the accompanying changes to the regulations of the individual federal states on assemblies, the court would probably now come to a different conclusion.
In October Berlin Employment Court ruled in that particular case that holding a meeting in person was permissible under the Corona Contact and Operating Restrictions Ordinance (Corona-Kontakt- und Betriebsbeschränkungsverordnung) currently in force at the venue. It said that the remaining health risk had to be accepted. The factual situation has probably changed in the meantime in this connection too meaning that a different decision could probably now be expected.
Incidentally: the special regulations on virtual resolutions by the works council, virtual works meetings and virtual conciliation board meetings, which were previously limited to 31 December 2020, are being extended until 30 June 2021 by the German Act on Safeguarding Employment as a Result of the COVID-19 Pandemic (Employment Protection Act (Beschäftigungssicherungsgesetz)), which will come into force on 1 January 2021.
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15. Do employees who have tested positive for COVID-19 who do not have (severe) symptoms receive continued payment of remuneration in the event of illness or compensation under the German Protection against Infection Act (IfSG)?
According to information provided by Landschaftsverband Rheinland on its website, anyone who is in quarantine or banned from work under the German Protection against Infection Act (IfSG) and who suffers a loss of earnings without being ill generally receives compensation in accordance with section 56 (1) German Protection against Infection Act (IfSG). The employer must initially pay this compensation to the employee for a maximum period of six weeks itself, i.e. pay it out in advance. It can then have it reimbursed by the authority responsible for it. The responsible bodies are listed here.
From our advisory practice we know that this is often not successful and the employer is left "footing the bill", apparently partly on the basis of the argument that it has to continue to pay remuneration in the event of illness. The crux of the matter is probably the following question: when is an employee unable to work and when is he simply "in isolation"?
If the employee is placed in quarantine and is simultaneously unable to work, the prevailing opinion is that the right to continued payment of remuneration under section 3 German Continued Payment of Wages and Salary Act (EFZG) takes precedence. However, the provision requires the employee to be "prevented from working due to illness", i.e. to be unable to work as a result of an illness. Many people who have tested positive for COVID-19 do not have any symptoms or only have mild symptoms such as an irritated throat or loss of smell. If an employee has no symptoms at all, section 3 German Continued Payment of Wages and Salary Act (EFZG) will not apply. Even with mild symptoms, i.e. a slight impairment of physical health, this provision will not always apply. The reason is that incapacity for work must be assessed by the treating doctor taking account of the workplace and the respective activity. Therefore, not every illness leads to inability to work. For example, in the case of most jobs, it will probably not be possible to get a "sick note" on grounds of a loss of the sense of smell. From our point of view, a claim for reimbursement of the compensation ought therefore to always exist if the employee does not get a certificate documenting his incapacity for work (Arbeitsunfähigkeitsbescheinigung) from his treating doctor. In practice we recommend the following procedure:
- If an employee informs his employer that he has tested positive for coronavirus and at the same time submits a certificate of incapacity for work, the employer should continue to pay remuneration in accordance with section 3 German Continued Payment of Wages and Salary Act (EFZG).
- If an employee reports his positive test result without being able to present a certificate of incapacity for work, which will mainly be if the test was not carried out by a doctor but, for example, at a test centre, a distinction should be made between the following cases:
- If the employee reports that he feels ill and does not feel fit to work, payment of remuneration should be continued in accordance with section 3 German Continued Payment of Wages and Salary Act (EFZG) and the employee should be required to submit a certificate of incapacity for work.
- If the employee states that he has no symptoms or if he only describes mild symptoms that do not fundamentally prevent him from continuing to do his job, a distinction must be made between the following cases: Employees who can do their work from home should be required to do so. In this case they are, of course, entitled to their usual remuneration. If working from home is not possible, there is actually no entitlement to continued payment of remuneration in accordance with section 3 German Continued Payment of Wages and Salary Act (EFZG) in these cases. In theory, however, the employee is entitled to compensation under section 56 (1) German Protection against Infection Act (IfSG). In practice, however, it seems that doctors often issue a certificate of incapacity for work even in such cases.
Please also note the special case where it is not only individual employees who are placed in quarantine but the entire company is closed on grounds of an official order. These cases probably have to be solved in accordance with the operational risk doctrine. According to this doctrine, the employer bears the risk of business disruptions and must therefore continue to pay wages and salaries in all cases where it cannot employ workers who are prepared to work due to business disruptions.
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16. How do I, as an employer, deal with persons returning from holidays/trips?
People returning from a risk area must go into quarantine for ten days. They can take a test from the fifth day after their return and come out of quarantine early if the test result is negative. Pursuant to section 56 (1) German Protection against Infection Act (IfSG), they are entitled to compensation for the duration of this period as a matter of principle. However, payment of compensation seems unfair if the worker embarks on the journey in full awareness of the fact that he is leaving for a risk area and must self-isolate afterwards true to the motto "Let's go to Barcelona and then have a holiday at the expense of the state". This problem has now been recognised and solved by the legislator: according to the "Third Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance" (Drittes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite), which came into force on 19 November 2020, in conjunction with the "Model Ordinance on Quarantine Measures" (Muster-Verordnung zu Quarantänemaßnahmen) of the German federal government, compensation for loss of income is granted in none of the German federal states if self-isolation is necessary as a result of an avoidable journey to an area already designated as a risk area at the time when the journey was commenced. A journey is deemed to be avoidable if at the time of departure there were no compelling reasons for the journey which could not be postponed.
In our opinion, the same applies to the employee's entitlement to continued payment of remuneration in the case of an actual illness: after an avoidable journey to a risk area for leisure purposes only, the employer may refuse continued payment of remuneration in the event of illness.
There is more on this topic in our blog post.
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17. Continued payment of remuneration or compensation under section 56 (1) a German Protection against Inflection Act (IfSG) for parents with children in quarantine as a precautionary measure?
If a child is placed in quarantine because the child is ill with COVID-19 and one parent cannot perform his or her work duties because he/she must care for the child, the caring parent receives nursing sickness benefit under section 45 German Social Insurance Code V (SGB V) if they have statutory health insurance. In certain circumstances, section 616 German Civil Code (BGB) applies first unless it is excluded on the basis of individual or collective law. The legal situation is clear in this respect. Up until now it was unclear whether the parent would receive remuneration or compensation if the child is not actually ill but only a first contact person.
Section 616 German Civil Code (BGB) almost certainly applies here too in principle. According to this provision, the employee receives continued payment of remuneration if he is prevented from performing his duties "for a relatively trivial period of time for a reason in his person without fault on his part". There is no clear answer to how long the remuneration would have to be paid on this basis, but probably for a maximum of five days. Therefore, according to section 616 German Civil Code (BGB), in the case of doubt, the caring parent will not continue to receive remuneration for the entire 14-day quarantine period. In addition section 616 German Civil Code (BGB) is often waived on the basis of individual or collective law; the employee would then not get anything.
The legislator has apparently also recognised this and expanded the new section 56 (1) a German Protection against Infection Act (IfSG), which was introduced during the first lockdown in March. It used to contain a provision on compensation payments for parents only for cases where the school or childcare facility was closed or could not be used on grounds of infection control. According to the "Third Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance", section 56 (1) a German Protection against Infection Act (IfSG) has now been supplemented to the effect that this compensation is also paid if a parent suffers a loss of earnings because the child must "self-isolate" (which is the word used by the German Protection against Infection Act (IfSG) for "quarantine"). The following must be taken into consideration: insofar as section 616 German Civil Code (BGB) is not excluded by the employment contract or a collective agreement, it is intended to initially apply for a period of up to five days and only then does the claim for compensation under section 56 (1) a German Protection against Infection Act (IfSG) arise (see FAQ of the Federal Ministry of Health on section 56 German Protection against Infection Act (IfSG), question 19).
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