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Coronavirus - Employment law update - Germany

  • Germany
  • Coronavirus - Country overview
  • Coronavirus - Workforce issues
  • Employment law

05-03-2020

In a situation of great uncertainty, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; following government guidance; and by acting fairly, reasonably and consistently.

 General Principles

German employers should:

  • Monitor and follow advice and guidance from relevant authorities and in particular the Robert Koch Institut (RKI) (RKI advice)
  • Assess the risks faced by their employees  and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • Inform their employees  and, where relevant, works councils about their proposed measures
  • Review their need for flexible working and whether existing contracts  and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • Review policies governing business  travel, holidays, sickness, caring for dependants  and home working to ensure a reasonable and consistent  approach, taking account of their risk assessment and RKI and government guidance
  • Review relevant insurance policies and guidance issued by their insurers
  • Update contact details for staff and management
  • Devise arrangements for dealing with staff who have to travel abroad, who may be at particular risk of contracting CoVID-19 or who report symptoms and may have CoVID-19

1. Employer’s duty of care – what does the law in Germany say?

Employers in Germany have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees  and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Regulations require employers to undertake a “suitable and sufficient assessment of the risks to the health  and safety ” of employees and anyone else who may be affected by the employer’s business.  This duty is a continuing one, and assessments must be recorded. The regulations contain specific provisions in relation to young employees  and pregnant women.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the RKI or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Some German businesses have started to provide personal protective equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure  to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.

Employers should inform employees  about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc).

Employers may also consider implementing measures to screen  visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees  asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in serious and imminent danger.

Employers should consider implementing protocols to deal with employees  under mandatory quarantine;  who have self- quarantined; who have travelled to high risk destinations;  who propose going on holiday to such destinations;  or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations; insurance; travel and events; communications  and occupational health to work together  on developing appropriate protocols.

Protocols will help to ensure consistent  and reasonable treatment,  thereby reducing the risk of employees legitimately refusing to work or discrimination claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees;  and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees  catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling non-essential business  travel and meetings.

Whilst the government currently advises against travel to Hubei Province and against all but essential travel to the rest of mainland China, and parts of South Korea and parts of Italy, it is not currently advising against travel to any other country/territory as a result of CoVID-19 risks. The government has published a list of countries affected by the outbreak (see CoVID-19 - specified countries and areas).

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary  to protect staff travelling on business.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts  may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before  exercising their rights to require flexible working and should to listen sympathetically if staff have personal reasons  why they cannot work flexibly.

If the employer needs employees  to work outside the terms of their existing contracts  then it will have to agree the flexible arrangements with the individual employee, and/or with their works councils.

In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

Alternatively, if the reason  for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary  and they are provided with supporrt.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned  about contracting CoVID-19. We would suggest employers listen to the reasons  for their concerns  and to try to find an agreed resolution. Where work can be undertaken from home, it may be possible to agree home working for a short period.

In other cases, such as site-based  work or where staff are unable to work due to caring for dependants,  it may be possible to agree that time away is taken as holiday or unpaid leave. The employer may be able to provide support and advice via an existing Employee Assistance Programme. However, under section 620 of the German Civil Code (BGB) unless explicitly excluded in the employment contract, employers are required to provide for continuous pay in case of short term forced absences, e.g. because of care for dependents

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason  for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19  will normally be entitled to sick pay in the usual way.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, may be entitled to paid leave on the basis that they are caring for dependents in accordance with section 616 of the German Civil Code (BGB) unless this is explicitly excluded in their employment contract. In this case they would be able to stay at home unpaid.

The position of staff absent  from work due to medically-advised self-isolation or quarantine is more uncertain. Any exclusion period should be reasonable and no longer than is necessary  to establish that the person is not infected. Section 616 of the German Civil Code applies unless explicitly excluded in the employment contract which could justify paid leave for up to six weeks in such cases. However, the exact duration of paid leave needs to be assessed on a case by case basis.

Employers should decide how they intend to deal with such scenarios  as part of their planning process.  If they wish to require employees  to use holiday in specific circumstances (for example, where employees  have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated  to employees  in advance.

6. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from high-risk areas and training managers  to spot symptoms of CoVID-19.

Individual staff contracts  may permit checks. A refusal to undergo a check when there are reasonable grounds for checking the employee’s health (for example, they appear ill or have been in a high risk area) may result in that employee being excluded from the workplace.

Employers can request  staff to report if they are infected or have been exposed to infection. However, under data protection law, such information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary  and appropriate for the stated purpose and is carried out in a proportionate  manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees  with a particular nationality or ethnicity are singled out for checks.

7. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shut down period?

Employers could apply for short-time work and subsidies by the government in such kind of cases. However, where there are works councils this is subject to prior agreement with the works council.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business  continuity and the protection of employees.  In addition to the above, employers should:

  • Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • Devise an appropriate communications  plan to keep staff fully informed, even when they are absent  from work, together  with provision of emergency contact details
  • Ask employees  to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • Train managers  on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • Consider alternatives to travel such as using videoconferencing  or webinars
  • Identify and track employees  who are abroad and consider appropriate measures to support them
  • Identify key roles in their business  which are essential for business  continuity and the measures necessary  to ensure their resilience (for example remote  working or split key teams into different locations)
  • Consider any measures necessary  to sustain widespread home working
  • Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts  to deliver flexibility
  • Consider how temporary shutdowns of premises might be managed
  • Review their insurance coverage
  • Consider their stance on requests  to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

9. Where can guidance from the German government and international bodies be found and monitored?

The website of the Robert Koch Institut (RKI) provides the latest official information on CoVID-19 in Germany.

10. If an employer has a business operation in an affected area, what additional steps  should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees  are suspected  to be ill.

Beyond compliance with local laws, companies  should ensure measures are taken to properly assess the risks to staff and the impact on business  continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.