1. Could your business face criminal (or administrative) liability for exposure or risk of exposure to COVID-19 to (1) staff or (2) business partners and the public, under existing laws or new measures to combat the virus?
Only individuals can be criminally liable according to the present German law (for this purpose see the next question). Nevertheless, all businesses must comply with existing health and safety laws and regulations and they can be administratively liable. If an individual in executive position (manager, director, board member, member of a control committee etc.) commits a crime or administrative offence during the execution of a company´s task, the company can be prosecuted and punished with fine up to EUR 10.000.000 and CEOs/directors with a fine up to EUR 1.000.000.
However, the German government is preparing a law which allows and expands the criminal prosecution of businesses. Future crimes are going to have a higher impact on businesses if they are committed by individuals in executive positions or if those executives do not sufficiently implement preventive measures. The specific changes remain to be seen.
2. Could senior management or other company representatives face criminal or other liability for any such exposure or risk of exposure?
Businesses are required to close or observe special regulations during the pandemic. The Regulations by German federal states are coordinated but differ in detail. They came into force in March 2020 and will constantly be reviewed. The Regulations limit movement and gatherings in public places (maximal number of persons, obligation to keep distance and covering mouth and nose). Certain categories of business must either close in full (such as discos and clubs) or part, or else cease certain operations while the Regulations are in force. Meanwhile, most of businesses are allowed to continue operations (subject to caveats).
Notwithstanding the above, all employers must continue to comply with their existing health and safety (and all other legal) obligations, whether or not those businesses are covered by the Regulations. Those existing obligations require businesses, so far as is reasonably practicable, to ensure the health, safety and welfare of not only their employees, but also third parties such as contractors, customers and members of the general public. Breach of these requirements may constitute a criminal or administrative offence under the German Infection Protection Law (Infektionsschutzgesetz) or bodily harm or even negligent homicide under the German Criminal Code (Strafgesetzbuch).
Directors, officers and ordinary employees may be criminally liable where they personally break the law, e.g. by intentionally or negligently spreading the virus. Directors can especially be accused of omitting the necessary precautions (punishment may be a fine or prison). If directors/CEOs neglect and breach negligently (not intentional) their obligatory supervision they can be punished with a fine up to EUR 1.000.000.
3. What are the potential penalties for (1) the business and (2) its management?
Administrative offences under the Infection Protection Law can be fined up to EUR 25.000.
Criminal offences under the Infection Protection Law can be either fined or cause a custodial sentence. If one infringes an administrative order (like closing the business) the punishment can be a custodial sentence up to 2 years. If one acts negligently, the punishment is a fine or a custodial sentence is up to one year. Negligent homicide can be punished with fine or a custodial sentence up to 5 years.
4. Have prosecutors or regulators brought any cases so far?
The public prosecution investigates the death of several humans who lived in a retirement home. They died in consequence of a Covid-19 infection which circulated there. The executives of that home are accused to do not have separated the residents quick enough. The investigations are not completed yet.
Furthermore, the authorities have remitted some fines. Information about their amount is publicly not available. However, they seem to be comparatively low.
5. Are there any specific measures mandated for companies continuing to operate or resuming operations during the pandemic, concerning exposure to staff, business partners and/or the general public?
No, there are no specific rules, but a competent business leader/CEO shall know what is correct from a point of view of under German law. The "correctness" depends on multiple facts and arguments as there are sort of business, local situation, work in or outdoor, working with risk groups (older people or people with pre-existing illness), work in contact with others. There are no official guidelines as well but information of German RKI (Robert Koch Institute) may be used as a guideline. Also all official advisors of German Cabinet and/or Parliament may help to guiding. The Ministry of Employment and Social Affairs has published an Occupational Safety and Health Standard which may be used, too.
General rules to pay attention on are up to date: social distancing, essential and non-essential work, and in-work activity. The advice to employers who have people in their offices or onsite is to ensure that employees are able, “where possible”, to follow RKI guidelines (including, “where possible”, maintaining a 1,5 metre distance from others; wearing protective mask or scarf or sth else covering nose and mouth), and hygiene (washing their hands with soap and water often for at least 20 seconds).
6. What potential liability could there be for civil claims by (1) staff and (2) business partners or members of the public in respect of infection (or other health issues) allegedly connected with a business’ operations during lockdown or in the aftermath? How might liability arise? Could companies face class-actions/ group claims?
German law provides for occupational health and safety obligations of the employer. The Occupational Health and Safety Act (Arbeitsschutzgesetz) in particular imposes the obligation to carry out a risk assessment of the workplace and to implement the necessary protective measures. As a result, the employer must ensure that the risks of illness and health hazards due to the corona virus in the company remain as low as possible. In response to the spread of the coronavirus, the Federal Institute for Occupational Safety and Health (BAuA) has published on its website implementation aids for protective measures in the form of a catalogue of measures for activities in the office environment. It is therefore recommended that companies follow such recommendations as part of their risk analysis and the definition of concrete protective measures and consider the BAuA's proposals. Depending on how businesses react and adjust to the Covid-19 crisis there is significant scope for civil claims and threat of claims. We identify below some key categories and risks of claims from employees and customers or business partners arising from breaches of the above restrictions and regulatory requirements.
Claims by staff relating to unsafe working conditions
- Employees and other staff of a company may, under certain conditions, be entitled to contractual claims for damages against the employer in the event of infectious diseases. In the event of an infection with Covid-19, the employer is generally liable for the causal damage, provided that he has intentionally or negligently breached his duties. According to the civil law provisions of the German Civil Code (Bürgerliches Gesetzbuch) and the German Occupational Safety and Health Act (Arbeitsschutzgesetz), the employer is obliged to take appropriate measures to protect the life and health of employees. The employer has a duty of care towards the employees, which also includes the duty to protect the employees' legal interests, such as life, health, personal rights and property. With regard to the manner and scope of the protective measures to be taken, the measures proposed by BAuA may be used as standard. If an employer violates his obligations intentionally or negligently he is liable. In addition, the employer can also be held liable for the fault of vicarious agents he engages to fulfil his occupational safety obligations. The claim for compensation basically covers the entire incurred damage caused by the breach. However, it remains to be seen in individual cases whether the causality of the damage could be denied because the corona infection could be seen as the realisation of the general life risk. It is also conceivable that contributory negligence from the employee might exclude or mitigate his claim for compensation.
- The employer's liability for personal injury suffered by the employee at work is largely excluded by the regulations of the statutory accident insurance (Sozialgesetzbuch VII). However, the umbrella organisation of the commercial trade associations and accident insurance funds "Deutsche Gesetzliche Unfallversicherung" (DGUV) is of the opinion that it is not liable for an infection with SARS-CoV-2, as the virus is now classified as a pandemic and thus as a general danger. If the opinion were to stand up in court, which, after a cursory examination, there is some evidence for, the limitation of liability under regulations of the statutory accident insurance would not apply and the employer could also be held liable by his employees for infections caused by negligence.
Claims connected to the transmission of Covid-19 are likely to raise complex questions of causation. For each case of Covid-19, there could be numerous potential infection sources. By making prudent adjustments to the workplace and encouraging social distancing, employers can not only reduce the risk for their employees, but also make it more difficult to prove that transmission occurred at the place of employment, increasing the causation challenge should an unfounded claim be filed.
Claims by members of the public
On the part of other third parties from the public, individual liability claims are also conceivable. However, the requirements for such claims are much higher. Since there are no contractual relationships with other members of the public, such individual claimants would have to present and prove all the requirements for a tortious liability claim. In particular, they would therefore have to prove that their legal interests, life or health, were causally infringed by unlawful and culpable conduct or omission on the part of the company. If the tortious claim is proven, the entire causal personal injury can also be claimed on this basis.