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Coronavirus – COVID 19-Guideline for Employers – Germany

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

17-03-2020

What should employers consider?

The existing risk of infection and disease must be explained to the employees and they must be informed of precautionary measures and indicated conduct (disinfection, washing hands). The (always up-to-date) information of the German Robert Koch Institute (RKI) provides points of reference as to how and to which extent employers should inform their employees

If the employer fails to inform its employees in line with the general duty of consideration (Sec. 241 para. 2 BGB) and the special duty of care (Sec. 618 BGB), it may become liable to pay damages if other employees become ill due to this failure.

Depending on the circumstances of the individual case, different preventive measures to reduce the infection risk, such as the introduction of flexible working times and the set up of mobile work places (including temporary work from home, if required), might be suitable to reduce the infection risk at work. It is recommendable to provide sanitizers for all employees, in particular in the sanitary facilities and at the entrances of the company. When establishing a general (hygiene) code of conduct, the co-determination rights of the works council must be considered.

If possible, working abroad or business travels in/to risk regions should be completely avoided and, for example, replaced by video or telephone conferences. In this context, the travel warnings issued by the Federal Foreign Office (Auswärtiges Amt, AA) as well as the recommendations by the RKI should constantly be checked. Employees should also be requested to inform themselves respectively in this regard.

As increasing infection rates and personnel shortages must be expected during the next weeks, existing substitution plans and regulations for crucial positions within the company must be reviewed and, if need be, several employees be trained as possible substitutes.

In case of any infections within the company, an emergency plan should be held ready, defining the procedure if suspected cases or confirmed coronavirus infections occur among the personnel.

It should be determined which key positions must be filled to maintain the business operations. In addition to managers and the company doctor, also the works council and any other corporate committees for occupational and health safety at work should be involved when setting up the emergency plan.

Such employees who potentially had contact with the infected employee and/or potential contact with an employee who, in turn, had contact with an infected employee, should be informed for reasons based on the duty of care. Depending on the company size, it might be appropriate to inform all employees working at the respective location. In this case, we recommend an early, transparent information policy.

If the employer has a legitimate interest, it is entitled to order an examination by the company doctor. As to this end also a respective error-free assessment with regard to the decision is required, the circumstances of the individual case are also decisive. If, for example, the employee stayed in a region at risk for which a travel warning was issued by the Federal Foreign Office and/or which the RKI classified as risk area and if the employee was present at locations with increased travel and public traffic such as airports and train stations, the employer's legitimate interest may prevail. In this context, the co-determination rights of the works council must be considered as this affects the organisational conduct (Ordnungsverhalten) of employees.

With a view to the operation of canteens, the Bavarian state government prohibited the operation of restaurants of any kind by way of a general order. Exceptions to this rule are company canteens during 06:00 am to 15:00 pm as well as eating places and businesses offering dishes for immediate consumption. In addition, the selling of dishes to take away or for delivery is permitted. It must be ensured in this case that the distance between the guests is at least 1.5 metres and that no more than 30 guests gather within the premises. The general order does not contain restrictions with regard to break rooms. Insofar it could be considered that the canteen from now on could serve as a break room or that further break rooms are provided in addition to the canteen which also fulfil the requirements of the German Workplace Ordinance (Arbeitsstättenverordnung, ArbStättV). Besides, similar regulations are also in place in other federal states.

Do employees have claims for remuneration?

In principle, the employer as bearer of the entrepreneurial risk remain obliged to pay remuneration in case of absences from work due to the coronavirus.

However, the employer might be released from this obligation under the following circumstances:

− an employee refuses performance in an illegitimate way

− quarantine is ordered by the authorities,

− short-time work is ordered,

− an employee becomes ill for a period longer than six weeks.

However, a claim for the continued payment of remuneration only exists if the infection is not based on a fault of the infected employee. Fault inter alia refers to situations in which the employee ignored a travel warning of the Federal Foreign Office within the framework of a private trip to a risk area (However, simple safety warnings are not sufficient in this context!). Insofar the employer can argue that

− such employees are not allowed to enter the business premises for at least 14 days if there is the risk of a possible infection/disease, unless a negative coronavirus test can be submitted proving that no infection and infection risk exists and

− in such cases the employees are not entitled to compensation for default of acceptance as they are responsible for the incapacity for work themselves.

As in most cases the employer does not know the detailed course of the incident, it must rely on the cooperation of the employees. The employees are, however, obliged to do so because otherwise it can be assumed that they are responsible for the incapacity for work themselves.

If employees, in light of the current assessment of the situation regarding the spreading of the coronavirus, cannot be employed in an adequate way despite an existing entitlement to remuneration, it may be considered to instruct the reduction of overtime or leave depending on the valid working time and holiday policies existing in the respective company. The co-determination rights of the works council must be preserved here.

In case employees are quarantined by public authorities without being incapable for work, the employer is no longer obliged to pay remuneration. Pursuant to the German Infection Protection Law (Infektionsschutzgesetz, IfSG), employees are entitled to a compensation in the amount of their net salary for the first six weeks of quarantine, Sec. 56 para. 1 IfSG. The compensation is paid by the employer who can, however, be reimbursed by the competent health authority.

If the employer is actually sick, the usual provisions for continued pay apply.

With regard to childcare and questions regarding the claim for continued pay, the following provisions apply:

− As child-care facilities and schools closed unexpectedly and the employees are forced to stay at home without their child being sick, the employee has a claim to continued pay for as long as it would usually take to find substitute care, i.e. approx. one to five days, unless otherwise provided for by the collective bargaining agreement or employment contract.

− If child-care facilities are closed for a longer period, as it is currently the case, there is no obligation to pay due to the impossibility to perform work.

− If the child is actually sick, sick pay is paid to the employee by the health insurance for ten working days per child and year, and for twenty working days for single parents per year (up to a maximum of 25-50 for several children), however, in this case there may also be different regulations pursuant to existing collective bargaining agreements or the employment contract.

Work from home

The instruction to work from home is principally not covered by the employer's right to instruct, unless specified in the employment contract.

If no provision on the work from home was agreed and the employer prefers the employee not to appear at work, the following applies:

The instruction to work from home is principally not covered by the right to give instructions pursuant to Sec. 106 of the German Industrial Code (Gewerbeordnung, GewO). However, the employee is entitled, e.g. in case of a suspected infection, to request temporary work from home if the performance of the work from home is possible. We furthermore assume that the employees are also subject to an obligation to avert damage so that the employer is entitled to instruct the employees to perform their work from a different location, at least temporarily, to the extent that this is required and reasonable for averting specific dangers and, apart from that, that the respective organisational prerequisites are given. With regard to the question whether this is a relocation subject to co-determination pursuant to Sec. 99 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), the limit of four weeks must be taken into consideration.

Alternatively, the employee can be unilaterally released from work subject to continued pay.

If the employees prefer not to appear at the work place for fear of an infection:

Should the employee refuse to work due to fear of an infection although there is no suspicion of infection, this constitutes a refusal to work. This principally gives reason to issue a warning and, in case of recurrence, to terminate the employment on grounds of conduct.

Preferably, however, a solution should be mutually agreed with the employee. In this case, the work could also temporarily be performed from home, if possible. The employee could be suggested to take any leave carried forward from the previous year or could also be released from work on an unpaid basis.

Short-time work

What is short-time work?

Short-time work refers to a situation where the working time and thus also the payment of salary are temporarily reduced due to a significant loss of work. The intention of this measure is to avoid terminations. Short-time work is introduced in a company if, due to economic challenges, the company cannot ensure that the employees work at full capacity, while there is also the chance to bridge this period of time with a reduction of the working hours. In some cases, this can even mean that during periods of short-time work employees are not working at all (this is called "zero-hour short-time"). The entire personnel or just part of it can be affected by short-time work. It is important in this regard that the loss of pay is partly balanced by short-time work compensation by the employment agency.

Who is entitled to apply for short-time work?

Short-time work is applied for by the employer. The application must be filed with the employment agency within three months in the district of which the competent payroll department is located.

Two steps are necessary to register short-time work and apply for short-time work compensation:

− The employer notifies the employment agency competent for the district in which the company has its seat of the loss of work in writing. The decision on whether the requirements for the payment of short-time work compensation are fulfilled is usually made immediately.

− The employer calculates the short-time work compensation and pays it to the affected employees. Following this, the employer files a written application for a refund of the short-time work compensation with the employment agency. The respective limitation period for this amounts to three months, starting with the expiry of the calendar month for the days of which the short-time work compensation was applied for.

The required forms to apply for short-time work are available on the website of the Federal Employment Agency.

How many employees must be affected and to what extent?

Short-time work can be introduced for all or only some of the employees. The scope of the reduction of the working time can also vary among the employees. Even a reduction of the working time to zero hours is possible. Short-time work compensation, however, can currently only be obtained if at least one third of a company's or business unit's employees suffer a loss of pay of more than ten percent each. According to the federal government's plans, in the future it will be sufficient if, instead of one third, at least ten percent of the employees are affected by short-time work.

What other requirements exist for short-time work compensation?

Short-time work compensation is intended to partly balance the loss of salary suffered by the employees due to reduced working hours and must be paid by the employer. However, the employer may request a refund from the employment agency if the following framework conditions are met:

− The loss of work is caused by economic reasons (e.g. a weak order situation) or an unavoidable event (e.g. floods). In connection with COVID, there are two possible facts based on which companies are eligible to apply for short-time work compensation with the employment agency provided that the other requirements are met: (i) if incoming work is significantly reduced due to the epidemic (pandemic) e.g. because supply chains or sale opportunities are breaking down or (ii) if employees are prohibited from working based on official orders.

− Beforehand, the company has made every effort to avoid or reduce the loss of work. Principally, this also presupposes that primarily at least any leave carried forward from the previous year must be taken, and in case of working time accounts, that not only overtime hours must be used up but also negative hours must be made before short-time work compensation can be claimed. Within the framework of planned legal changes, however, it is not indended that negative hours must be built up.

− The underlying assumption is that the loss of work is only of a temporary nature and therefore a resumption of the regular working time is expected to take place soon.

− The company has registered the loss of work with the employment agency.

− The employees for whom short-time work is applied remain in an employment relationship subject to compulsory insurance after the commencement of short-time work and their employment has not been terminated.

− At least one third of all employees of the company are affected by the short-time work in the respective calendar month (claim period) and suffer from a loss of payment amounting to at least ten percent of their monthly gross salary. Within the framework of the intended legal changes, the minimum threshold of employees affected by short-time work is intended to be reduced to ten percent of a company or business unit.

What amount of short-time work compensation is paid and for how long?

The short-time work compensation is calculated on the basis of the loss of net salary. It principally compensates for sixty percent of the net salary. If at least one child lives in the same household, the short-time work compensation amounts to approx. 67% of the lost net salary. The maximum eligibility period currently amounts to twelve months. It may be extended to a maximum of 24 months by statutory order.

What costs is the employer obliged to bear?

If the working time is not reduced to zero, the employer continues to pay the remuneration for the remaining working hours including the respective employer's contribution to social security insurance. In addition, social security contributions are payable for 80% of the loss of salary due to the short-time work. Pursuant to the previous legal situation, the employer is obliged to bear such contributions at its own cost. The federal government, however, plans in this regard to introduce refund possibilities for this proportion of the social security contributions. Depending on the legal basis of short-time work, the employer can ultimately be obliged to make additional payments to the short-time work compensation.

How is short-time work introduced?

Employers cannot introduce short-time work autonomously. Instead, this requires a contractual basis set forth in a collective bargaining agreement, a company agreement, the employment contract or an additional agreement to the employment contract.

Travel

Is the employer allowed to prohibit an employee from making private travels?

It is the employees' private decision what they do in their spare time. In this context, the employer is not entitled to encroach on the employees' right of personality and prohibit travels into risk areas, even if the Federal Foreign Office issued a travel warning.

Return from travels

Principally, the employer is not allowed to ask employees about their travel destinations. Such information constitutes personal data which may only be requested (and therefore processed) if this is required to "perform the employment relationship". However, it would be possible to ask employees whether they stayed in a risk area. Usually, the entitlement is limited to a negative answer. The employee is not obliged to provide information on the exact location.

In addition, due to their contractual ancillary and loyalty obligations, the employees are subject to, they are obliged to inform the employer proactively about travels to official risk regions. Should the employee enter the business premises with this knowledge without informing the employer, this would constitute at least an ordinary reason for termination due to the at least grossly negligent acceptance of a damage to life and limb and the employer's property.

If the employee returns back late from travels, the employer is not obliged to pay salary for such period. The employee bears the risk of the journey, e.g. in case of transport failures. Moreover, such conduct may lead to a warning or a termination. However, if the employee is unable to return due to reasons for which the employee is not responsible, the employer is obliged to continued pay vis-à-vis the employee pursuant to Sec. 616 BGB for a relatively short period of time.

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