COVID-19 is spreading across the world and companies everywhere are faced with its challenges. In circumstances where a COVID-19 case impacts your German workplace we recommend close coordination with the public health authority on how to proceed. In doing so – especially against a possible liability for illness or even death – it will show that you, as an employer, have taken all reasonable steps to ensure that you have protected your employees. For further guidance please check our Q&A list:
1. Can employees be forced to take unpaid leave or flexitime or to reduce their working hours?
There is no right to place employees on unpaid leave, nor is it possible for an employer to impose reduced working hours unilaterally. It is only possible for an employer to order flexitime if a works agreement provides for this – in particular if it is to reduce (considerable) accrued overtime. However, the government is lowering the hurdles which employers need to overcome in order to be able to introduce short-term working where the company experiences a business downturn as a result of the COVID-19. Short term working in those circumstances can be a means of quickly reducing personnel costs.
2. Can employees be required to work from home temporarily?
Employers may not send employees to work from home against their will. Employees can only be offered such an arrangement. If a (healthy) employee refuses to work from home, they can only be suspended from work if necessary; in this case, however, an employer would be required to continue to pay their remuneration. The situation may be different if there is a suspicion that the particular employee is already infected with the virus; in which case, an obligation to work from home could possibly be enforced.
3. What rights do employees have if they are unable to come to work due to the closure of public transport?
It is the employee’s responsibility to make sure that they can get to work. If an employee is not able to come to work when local public transport ceases, they are not entitled to remuneration. Only with the employer’s consent can working from home be considered in this case. Otherwise, sanctions for late arrival or unexcused absence are an option.
4. Can employees stay at home with pay if their child’s daycare or school is closed due to concerns about the virus?
The care of their children is a private responsibility of employees. Only if no other care can be provided in the short term and the children concerned are still too young to stay at home alone, is there a temporary right to stay at home. In this case, too, the employer must be informed immediately; the possibility of working from home or the introduction of holidays or flexitime should be discussed. If a child falls ill with COVID-19, the employee may – as with other illnesses which lead to the need for care of children – stay at home temporarily, but only to the extent necessary. In this case, depending on the terms of the employment contract, there is a right to remuneration or a claim under the statutory health insurance.
5. Can employees simply stay away from their workplace to protect themselves against the virus?
Employees are not allowed to simply stay away from their workplace, even for reasons of self-protection. According to the Occupational Safety and Health Act and the employer’s duty of care, the employer is obliged to exclude the risk of infection at the workplace as far as possible. This can be done, for example, by providing disinfectants, hygiene instructions, face masks and the immediate release of affected employees. Only if an employer clearly does not comply with this obligation and it therefore becomes unreasonable to visit the workplace, is there a right to refuse to attend work.
6. Who pays the salary in the event of a plant closure?
- If an employer closes the business on the basis of its own decision as a precautionary measure to avoid a possible risk of infection, salaries must continue to be paid – as in the case of leave of absence – provided that the employees are basically capable and willing to work.
- If the closure of the company is ordered by the public health department and quarantine is imposed on the employees because there is a suspicion of infection, the employees will receive a compensation payment instead of continued salary. This is initially paid out by the employer; however, the employer can apply to the Health Office for reimbursement within three months (§ 56 Para. 1 of the Protection against Infection Act). For the first six weeks, the amount of this compensation corresponds to the loss of earnings; from the seventh week onwards, it corresponds to the sickness benefit.
- If the quarantine can be avoided by working from home, the employee will be paid their regular remuneration rather than a compensation payment. In addition, sick employees retain their legal right to continued payment of remuneration due to incapacity to work even during quarantine. If a case of coronavirus occurs in the company, the occupational health service or the company doctor and the public health authority must be informed immediately. Further measures should then be agreed with them. We do not believe that there is a duty to inform all employees given the current medical findings on the coronavirus; however, other sufficient protective measures would have to be taken to exclude the risk of infection as far as possiblefor example, direct colleagues would have to be asked to work from home or suspended and disinfection of the affected workplaces would have to be carried out. In particular, for data protection reasons, those employees who are sick should not be disclosed by name.
7. Does an employer have to inform all employees if a case of COVID-19 has occurred in the company?
If a case of COVID-19 occurs in the company, the occupational health service or the company doctor and the public health authority must be informed immediately. Further measures should then be agreed with them. We do not believe that there is a duty to inform all employees given the current medical findings on COVID-19; however, other sufficient protective measures would have to be taken to exclude the risk of infection as far as possiblefor example, direct colleagues would have to be asked to work from home or suspended and disinfection of the affected workplaces would have to be carried out. In particular, for data protection reasons, those employees who are sick should not be disclosed by name.