The spread of COVID-19 coronavirus is making world headlines. Since its original outbreak in December 2019 in the Wuhan region of China the virus has gone global. In the almost two months since we wrote about the Coronavirus’ impact on German visa applications from China, the virus has spread rapidly. There have been over 200,000 reported cases of this outbreak, with the majority occurring in China. Moreover, the virus has also led to the deaths of over 3000 people.
Clearly, this virus is a serious issue and people have good reasons to be concerned. As cases of COVID-19 coronavirus have reached Germany we have received inquiries relating to employment law issues and the coronavirus. In this article we will answer some of those questions.
If you have a particular issue or legal question concerning events related to the COVID-19 coronavirus, please contact our law office directly. Our lawyers can be reached by phone, email and also provide video conferencing options. For more legal information on the Corona crisis, please visit our Crisis Dashboard.
It is easy to be worried about going to crowded areas like work places, public spaces and public transport especially with how quickly COVID-19 coronavirus spreads. However, the fear of the disease does not simply permit a person to not carry out their employment responsibilities. Should a person reach an agreement with their employer to work from home office then that is different. However, your employer is not obliged to grant home office. Furthermore, if you stay at home without the express permission of your employer you run the risk or official warnings and even termination of employment. Normal German employment law and corresponding rights and responsibilities are still in place and must be followed.
If you believe you are showing symptoms of COVID-19 coronavirus then you should consult your doctor. The virus presents itself in a similar manner to regular flu and therefore contacting your medical professional is the best course of action to follow. Should you be confirmed of having COVID-19 coronavirus it is advisable to contact your employer so that they are aware that their employees may be at risk. Workers are not obliged to share their health data with their employer, but due to the contagious nature of the virus informing your workplace may help to prevent the spread of it.
Fear of traveling by public transport also does not grant you additional rights when it comes to availing of home office. Essentially, workers are expected to behave as normal unless they have the virus, there has been a suspected outbreak in the workplace or their employer has granted them home office etc. Should you fear traveling by public transport, your workplace can reasonably expect that you will make alternative arrangements with transport.
Employers have a responsibility of care towards their employees. This is especially the case where there are suspected dangers to health. Employers should do all they can to highlight hygienic precautions that people within the workplace can take to reduce the chance of the disease spreading. This can be through emails within the company or through signs around the workplace. Furthermore, employers should not send workers to areas that the governmental authorities have warned about. However, this is also in the interests of the employers themselves. Should workers be sent to areas that the government has warned about only to have those employees return with the virus, it may cost the employer more.
If there is reason to suspect that an outbreak may occur in the workplace, an employer has the right to close the office. Those carrying the coronavirus can also be quarantined whether in hospital or at home. This has been the case in Munich where 150 workers at BMW have been quarantined. Employers can consider giving their employees home office if they wish to reduce the chance of the virus spreading.
Employers would be best advised to contact the health authorities if there has been a case of the coronavirus at their workplace. This is especially vital if other workers have started to show signs that they too may be infected. Health authorities can also order the closure of a workplace if they believe it justified.
Germany has strong regulations against unfair dismissal through the Kündigungsschutzgesetz and workers should be aware of their rights arising from it. Workers have the right to bring a case of unfair dismissal if they believe they have been treated unfairly and this can lead to the awarding of severance payments.
Illness does not prevent the employer giving their employee their notice prior to a termination but the employer can only issue an extraordinary termination (dismissal without notice) where there is just reason for it. Such just reasons include: the employee has committed criminal actions, they have breached confidentiality agreements, they have feigned illness or repeatedly being late. Contracting an illnes is not a ground by which such an extraordinary dismissal can take place.
Should you face termination of employment and believe that it is linked to contracting COVID-19 coronavirus then it is advisable to avail of legal assistance. There are deadlines in place for when one can launch an unfair dismissal action. Such deadlines need to be respected. The law in Germany can be quite strict when it comes to missed deadlines and especially in such cases.
Will I still get Paid if I have to stay at home because of an Outbreak?
If you show signs of COVID-19 coronavirus or have been diagnosed as having it then you should not fear that you will lose out on remuneration. Under the Continued Remuneration Act § 3 workers are entitled to receive their wage should they be forced to miss work due to illness. A doctor’s note will be required to demonstrate that you were ill. It is not necessary to inform your employer of the exact illness as employees have a right to protect their own health data. However, in the light of how COVID-19 coronavirus has spread, it may be better for the health of your colleagues to inform the employer. Should they be informed they can take necessary precautions to reduce the risk of further infections.
As COVID-19 coronavirus is an infection, § 56 of the Protection Against Infection Act plays an important role. People with the virus who are ordered to stay out of the workplace due to fear that they will spread it are entitled to compensation from the state. This applies to those who have been quarantined. The compensation will take the form of their employer paying them as normal (as in the case of them being sick) but the employer will have the chance to seek the compensation payment from the state.
If your employer has closed down the office due to an outbreak of the virus, then employees are entitled to their full pay. The closure of a workplace is a decision that can be made by the employer or the health authorities. Whichever side makes the decision the requirement that the employees get paid in full is still in place.
My Workplace is Closed and I cannot Work from Home – Will I still be Paid?
For some workers in the current environment, home office is the best way forward. As offices close, and people are encouraged to self-isolate to prevent the spread of COVID-19 coronavirus, more people than ever find themselves at home. For some workers home office is relatively straightforward and they can do all or most of their work from home. If the job can be completed from home office, the employee should be paid by their employer as normal.
However in other jobs home office is not possible. If these employees are put into quarantine they will still continue to receive their remuneration the employer. This is in accordance with § 56 Protection against Infection Act. In such cases employers can apply for compensation from the state to make those payments to the employee. Such compensation corresponds to the amount of the loss of earnings. The employer should make the payments to their employee first and then apply for the compensation from the state.
Another option available to employers is Kurzarbeit which we outline later in this article. This is an option whereby the employees hours are redued but the state compensates for the loss of wages which should have been earned.
Can my Employer force me to take Leave during the Closure of the Workplace?
For certain events in the year where the employer knows the office will have to close they can have their employees take compulsory leave (“Zwangsurlaub”), however in the case of a COVID-19 coronavirus outbreak this is unlikely. Such compulsory leave is normally for foreseeable events in the future. When a business makes the decision to close the workplace due to an outbreak it tends to be at short notice. It cannot be expected of employees to change their entire leave plans for the year without any advance warning.
COVID-19 coronavirus is having a huge impact on businesses in every sector and all across Germany. Employers are facing incredible difficulties with contracts and events cancelled, reduced foot traffic and general lack of business taking place. In order to combat these effects, some businesses have brought in (or are considering bringing in) reduced working hours (Kurzarbeit) for their employees.
Under reduced working hours / Kurzarbeit employees have a temporary reduction of regular working hours and also a reduction in pay. It must be stressed that, this is a temporary measure with the aim of keeping all workers employed at a time when employers face serious economic difficulties. In times like these where events outside the control of the business has forced this measure, the businesses can be granted support / compensation from the state.
Support / compensation for Kurzarbeit / reduced working hours comes from § 96 Social Security Code / SGB III and allowed for where:
- the loss of work is substantial,
- it is due to economic reasons or an unavoidable event.
Some states such as Baden-Württemberg were early in announcing that these measures would be taken should the COVID-19 coronavirus outbreak reach Germany. The Federal Employment Authority confirmed that it would be the measure taken in Germany. However, companies have to show evidence that their company should be entitled to this compensation / support. Furthermore, companies also have to apply to the state authorities prior to enacting the Kurzarbeit / reduced working hours mechanism to ensure that the conditions are fulfilled.
Under German law, employers have a general duty of care towards their employees when it comes to taking appropriate protective measures. This is provided for under § 618 German Civil Code (“BGB”). With the outbreak of COVID-19 coronavirus this means that employers should ensure they have appropriate resources in office so that their employees can follow the healthcare instructions that have been provided. Employers should make sure that their employees can practice social distancing, have soap and that the workplace is in a suitably hygienic state.
As an employer, the health of your employees is of vital importance. Although home office is not a legal requirement if it is possible for people to do so then it needs to be strongly considered. If employees are displaying signs of COVID-19 coronavirus this needs to be acted upon. Other employees can refuse performance if they have reason to believe that protecting their health is not being taken seriously by their employer.
Employers should be cautious with their approach to business trips. An outbreak of COVID-19 coronavirus because of a worker returning from a business trip in an area impacted by the virus is bad for business. It can be bad for the business image if customers know that the action was taken after the precautions were announced. It’s also bad for business if workers have to be quarantined and if work is disrupted due to an outbreak.
Should an employee refuse to go to an area that is considered to be particularly risky and the employer insist they go, it is possible that the employer could be found in breach of the duty of care. Employers have a responsibility of care towards their employees and reckless breach of this responsibility could be costly. However, employers are aware that risking an outbreak of the virus at the workplace is bad for business. In most cases, conducting a business trip is not worth the risk of such an outbreak.
What Happens if the Kindergarten / Crèche, Child Day-Care or School is Closed?
The risk of COVID-19 coronavirus is not only in place in workplaces but also in schools, day-care centres and Kindergartens. Some schools have closed because of infections. Should a day-care centre be about to close due to risk of further infection, it is advisable to inform your employer. It may be possible to be given home office during this time. Alternatively, the parent may be able to take unpaid leave. During this time they would be expected to do all they can to organise other options. Discuss the issue openly with your employer as it may require time to make alternative arrangements for the child.
Should the child be sick, workers have the right to look after their children for a period of 10 days during the year per parent (20 days in the case of single parents). This is worth remembering should a child become infected with COVID-19 coronavirus. Although it is not an obligation to inform your employer of the exact illness once again it may be worth informing your employer so that precautions can be made against further infections occurring in the workplace.
Legal Assistance in Germany
COVID-19 coronavirus is currently all over the news and there is reason to be concerned. Employers should not take unnecessary risks with the disease moving around as it is. This may mean cancelling business trips and taking precautions at the workplace to reduce the risk of infection. For employees, there are steps they can take and they do have legal protections in the event of the virus impacting their employment life.
In this article, we have aimed to examine some of these employment law protections, however, should you have other queries please contact us directly. Our employment law legal team is aware that this may be an uncomfortable topic to discuss but they will provide the guidance and counsel you may require.
At Schlun & Elseven, we provide legal services in languages such as English, French, Spanish, Portuguese, Chinese, Turkish and German. From our offices in Cologne, Düsseldorf and Aachen we can provide the guidance you need concerning your legal questions about COVID-19 coronavirus. We look forward to working with you.
