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The coronavirus and German labor law: labor law rights and obligations in the event of quarantine

Lawyer and specialist lawyer for labor law Peter Groll answers labor law questions about the coronavirus epidemic in this article. The focus is on the legal situation regarding quarantine, work obligations and business trips.

The article deals with a highly topical topic because of the constantly changing crisis situation. Changes to the factual and legal situation can occur very quickly after publication. Our author gives the factual and legal situation known to him as of the beginning of March 2020.

The article was published as part of the AnwaltZertifikatOnline Arbeitsrecht: Groll, AnwZert ArbR 5/2020 Note 2

A. Introduction

The coronavirus is currently ubiquitous as a topic of conversation, since after Italy it has now also reached Germany. It can already be seen that the uncertainty regarding the consequences and effects of the coronavirus is primarily reflected in professional life. There are currently important labor law issues, particularly for employers and employees. How is quarantine legally justified and what do affected workers need to know if they are in medical or domestic quarantine? What other labor law obligations do employers and employees have? And how do they affect practice? These and other important questions about how the coronavirus is reflected in German labor law should be answered in this article.

B. The legal situation in the event of quarantine

I. Objective presentation of the legal situation

Sections 30, 31, 56 Infection Protection Act (IfSG)

The relevant legal basis for the quarantine regulation under hazard prevention law is § 30 IfSG. According to this, the competent authority - usually the competent health department - can order that people who are ill with diseases that can be transmitted from person to person are immediately isolated in quarantine. This can either be a hospital or your own home. During this time, those affected are obliged to follow the instructions and adhere to the quarantine. If they do not comply with the order pertaining to isolation, they can be enforced by judicial decision according to Section 30 (2) Sentence 4 IfSG in conjunction with Section 428 FamFG. In this respect, the basic right of freedom of the person can be restricted according to Art. 2 sentence 2 GG.

During the quarantine, according to Section 30 (4) IfSG, only the treating doctors, nurses and pastors have access to the sick person, whereby other people can be allowed or denied access by doctors. Leaving the quarantine at your own discretion is not permitted under any circumstances, as the virus could otherwise spread uncontrolled.

According to § 31 IfSG, sick people, suspected illnesses, suspects of contagion and people who have left the company may be prohibited from exercising certain professional activities in whole or in part. The assessment lies with the competent authority and must be complied with immediately by the person concerned.

If an employee is in quarantine, § 56 IfSG is relevant for the question of continued payment of his salary. This is because a compensation system is standardized there, which is based on the level of continued pay and sick pay.

Sections 73, 74, 75 IfSG

Sections 73-75 IfSG standardize regulations on fines and penalties. In the case of violations - especially of reporting obligations - fines are provided, in the case of violations of §§ 74-75 IfSG even imprisonment of up to five years.

II. Labor law issues regarding quarantine

On the basis of the relevant standards of the IfSG, specific questions now arise that are primarily posed by employees.

Do employees still get their salary?

To answer this question, a distinction has to be made between a quarantined employee who is actually ill and an employee who is not.

If the employee actually falls ill during the quarantine - and is therefore also on sick leave - the general rules on continued remuneration according to Section 3 EFZG apply. The employees then receive their salary from the employer for the first six weeks and then sick pay according to Sections 44, 47 SGB V.

If, on the other hand, a person is only quarantined as a precaution, i.e. is not infected at all and is therefore not on sick leave, then the above-cited law on the prevention and control of infectious diseases (IfSG) applies. In particular, Section 56 (1) IfSG then applies, according to which the employee is entitled to compensation in the amount of the continued remuneration claim for the first six weeks due to the quarantine ordered by the authorities. According to Section 56 (5) IfSG, the net salary will continue to be paid by the employer, although the employer can later request the return of the amount from the authority that ordered the quarantine. From the seventh week onwards, the claim to compensation corresponds to the amount of sick pay according to Sections 44 and 47 of the Social Code Book V.

Who is responsible for the loss of earnings for the self-employed?

Even self-employed or freelancers can suffer a loss of earnings during the time in quarantine, so that the question arises here too, who will pay for this loss. According to Section 56 Paragraph 3 Clause 4 IfSG, the compensation regulation is then based on the compensation payment for employees also in accordance with Section 56 Paragraph 1, 3 IfSG, in which case the last annual income that was reported to the tax office is decisive.

Do workers have to work during quarantine?

With this question, too, a distinction must be made between employees who are actually sick and those who are not.

If the employee is not infected during the quarantine and has the necessary work equipment with him (laptop, mobile phone, etc.) - e.g. in the event that he is on a business trip or returning from a business trip - he is also obliged to do so under labor law , to work. Specifically, this means that he must not refuse to work under the pretext of quarantine. This then represents a refusal to work, for which a warning or dismissal threatens.

If the employee is not infected, but does his normal work as an employee, for example on a large machine at the employer's, then of course he cannot work in quarantine. But even in this case it may be that he still has to work. Thus, the employer's right to issue instructions according to Section 106 GewO comes into consideration, according to which he could also impose work on the employee that he can do within the quarantine.

If, on the other hand, the employee is actually infected and is therefore on sick leave, he is not obliged to work.

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C. Further labor law issues and their implications for practice

I. What (protective) obligations do employers and employees have?

The employer has a duty of care towards his employees, which results from the employment contract. This obliges employers in particular to protect the health of their employees. Therefore, employers currently have to pay particular attention to the employer's duty of care if they have trade relationships with Chinese companies or other areas affected by the coronavirus or if they themselves employ workers in or from China or the affected areas.

Specifically, employers are obliged to take protective measures to ensure the protection of their own employees. For example, rules of hygiene and behavior should be drawn up (provision of disinfectants in toilets, in kitchens and meeting rooms; issuing of information and warning notices, etc.). In addition, employers are also obliged to tolerate measures taken independently by the employee. If the employer does not fulfill his obligation and thereby deliberately exposes the employee to a risk, this is to be seen as a breach of duty.

In order to prevent a pandemic within the company, employers can change the operational procedures or work organization in such a way that increased contact between employees is avoided. Individual offices can be created and personal meetings can be reduced to a minimum by only communicating via Skype or email, for example.

Employees are obliged to inform their employer and colleagues about the appearance of their own symptoms of illness.

II. Can employees refuse to work or just stay at home?

For employees, the question arises as to whether they still have to appear in the office or whether they prefer to work from home in the home office. From a legal point of view, the place of work is the place specified in the employment contract. Anyone who stays away from this place for no reason and merely out of fear is acting contrary to the employment contract and risks a warning or even a dismissal, as it is a refusal to work. Only the employer has the right to allow a special regulation. Specifically, this means: Employees may only stay away from the premises if the employer explicitly allows the home office.

This also applies if the employee suspects to have been infected. However, it is important to inform the employer about a possible infection. The employer can then decide whether to release the employee.

A right of the employee to refuse to appear for work would at least presuppose that the company does not take any protective measures, especially for reporting, hygiene and temporary home care, despite a specific infection within the company and despite requests from authorities or the works council. Office regulations.

In addition, it applies that the employee bears the risk of the road. This means that he is responsible for showing up at work on time. This also applies in principle if there are failures in local public transport. The employee can also be obliged to take a taxi to work. If the employee is ultimately unable to come to work, he is threatened with a warning, in any case he will not receive any salary for that day.

III. Can an employee stay at home when daycare centers or schools are closed?

In principle, the above already applies. Because the closure of daycare centers and schools is also in the private sphere of the employee.

Basically, if your own child is ill, parents are entitled to stay at home for a while and look after the child. This entitlement is limited to ten working days per child and parent - for single parents to 20 working days. The employer is entitled to proof that the child is in need of care.

If the child is healthy and parents stay at home because schools or kindergartens are closed, they must inform their employer immediately. Because in the event of a dispute, parents must be able to prove that their child could not stay at home alone and that no one else can take care of it. If this does not happen, there is a risk of a warning or even termination. Parents who are currently affected by kindergarten and school closings should therefore talk to their employer immediately. Often amicable solutions can be found, such as working from the home office or unpaid vacation.

With regard to wages, those who do not work usually do not receive any wages. Exceptions could result from § 616 BGB. This stipulates that employees continue to receive their salary if they are not absent for a relatively long time and are not responsible for their absence. For this, however, it specifically depends on whether no other care was really possible for the child. This means that if primarily grandparents or domestic help could take care of the children, there is no entitlement to a salary. The “relatively long time” is an indefinite legal term, so that it always depends on the individual case.

IV. Can the employer order compulsory leave?

In principle, the employee's wishes according to § 7 BUrlG must be taken into account when determining the time of the vacation. When planning vacation, however, he must take into account both urgent operational issues and the vacation requests of other employees. The employer is therefore entitled to order compulsory leave as a result of urgent operational issues. Such operational issues can also arise due to the current situation, e.g. due to a decline in orders or delivery bottlenecks.

V. Do employees have claims against the employer in the event of an infection during working hours? If yes, which?

This presupposes an attributable breach of duty and the fault of the employer for an infection of the employee. So far it will hardly be possible to assume that. With the increasing risk situation, however, one will increasingly have to expect the mentioned information on hygienic and organizational precautionary measures, which are required in any case in the event of a certain exposure in the office.

An extreme case would be the deliberate withholding of a risk, for example if there are indications of a specific infection, or if travel to China is now ordered against any necessity. However, it is more likely that one or the other employee now has to protect himself and his supposedly so important on-site appointments by having the employer generally prohibit these trips.

VI. Do workers continue to receive money if the company is closed due to the coronavirus? Can employers apply for short-time work benefits?

If authorities close companies because of the coronavirus, employers have to continue to pay the employees their wages. Because in Germany the employer bears the operational risk if a company has to be temporarily closed due to official orders to protect against a pandemic. It follows that employees retain their right to remuneration even if they cannot work. In principle, the lost working hours do not have to be reworked.

However, employment contracts and collective bargaining agreements may contain other regulations. Corresponding agreements must, however, be formulated with sufficient clarity and clarity.

However, employers may have the opportunity to apply for short-time allowance at the Federal Employment Agency. This is based on §§ 95 ff. SGB III. The duration of short-time work is regulated in § 104 SGB III, according to which this can be ordered for a maximum of one year. The amount of the short-time allowance is 67% of the salary according to § 105 SGB III.

The aim of short-time work is that employees are not dismissed, but can stay in the company by temporarily reducing their normal working hours for certain reasons and therefore reducing their salary to the short-time allowance. This performance is intended to partially compensate for the loss of earnings and gives the employer some financial freedom to survive the crisis.

A loss of work due to or as a result of the coronavirus and / or the associated safety measures is usually based on an unavoidable event or on economic reasons within the meaning of Section 96 (1) No. 1 SGB III. Compensation for lost work with the help of the cyclical short-time work allowance is basically possible. It should be noted, however, that companies and companies report short-time work to their responsible employment agency if necessary.

VII. What should be considered when going on a business trip to China or other risk regions?

Many employers send their employees on international business trips. In this regard, too, there are labor law issues that have implications for practice. Basically, a business trip only has to be started if there is a contractual obligation to do so. Without an employment contract, a specific assignment abroad can only be agreed on the basis of a mutual agreement.

If there is an obligation under an employment contract, the order for a business trip is based on the employer's right to issue instructions according to Section 106 GewO. Thereafter, the employer may only exercise this at its own discretion. In the opinion of the BAG, an instruction corresponds to equitable discretion if the mutual interests according to constitutional and legal value decisions, the general principles of proportionality and appropriateness as well as custom and reasonableness have been weighed. This means that the employer must weigh up the interests of the employee and the interests of the company, whereby he must in particular observe his duty of care for the employees.

The duty of care is expressed in particular by the fact that he is obliged to protect the health of his employees.

A business trip can only be refused if a significant health risk is to be expected. Then the employer is not allowed to issue any sanctions, i.e. warnings or dismissals. Because such an instruction would then not correspond to the equitable discretion according to § 106 GewO.

If the Foreign Office has issued a travel warning for the target region, the employee can usually refuse the business trip. However, the specific circumstances of the individual case related to a health risk from the business trip must be taken into account, so that this does not apply across the board for every case. If the risk situation is still unclear, the employee cannot simply refuse the business trip due to his contractual obligation. Even in these cases, however, the employer is not prevented from taking precautionary measures and finding a solution with the employees.

As a general rule, companies are required, within the framework of their health protection obligations, to limit travel to what is necessary and to give specific instructions on how to behave in coordination with the health authorities and health insurance companies or the company doctor.

VIII. Can employees refuse to meet with Chinese colleagues or customers?

The question also arises as to whether employees can now simply refuse any contact with employees or customers from the affected regions. However, without concrete evidence of existing infections or symptoms, there is no right to refuse to work with colleagues. The employer should, however, consider avoiding meetings and consider the possibilities of communication via Skype, e-mail or other video conferencing in order to express his concern for the employees and to rule out any risk.

D. Conclusion and legal appreciation

The coronavirus, like other infectious diseases such as the flu or measles, affects every employee and employer in Germany, even if one is not infected and thus specifically affected by it. It is all the more important to take preventive protective measures. Ultimately, panic is out of place and can lead to consequences under labor law. Prudence is the order of the day.

Also read on the subject of "Corona & Labor Law":

Coronavirus: the legal situation

You can find further articles on the legal situation relating to Corona in our Coronavirus dossier

Peter grudge

  • Lawyer Peter Groll is the founder of the employment law firm Groll & Partner, main areas of activity: accompanying specialists and executives, managing directors and board members in separation situations as well as drafting employment and service contracts
  • Many years of experience as HR manager in various business areas at Deutsche Lufthansa AG; 1995 to 2001 Head of Human Resources in the Lufthansa Group
  • 1993 admission to the bar, 1996 specialist lawyer for labor law

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