The current situation in view of the corona virus also raises many questions in the media and entertainment industry. Our experts in media and entertainment law will answer important questions together with our employment law team. We will update this article daily and mark [updates] accordingly.
Question: On March 16, 2020, various public authorities issued “general decrees” according to which no more permissions for movie shoots will be issued and existing permissions will be revoked. Does this mean that movie shoots are now prohibited altogether?
Answer: No, that is not the case. It is evident that no new permissions for movie shoots in public spaces will be issued and existing permits may be revoked by the competent authorities. On the other hand, however, the general decree does not apply to movie shoots on closed sets with only performers and staff present and without audience participation. If an audience is present, however, it will likely be an event that is prohibited. In cases where only performers and staff are present, this is considered normal work, which is not prohibited and is supposed to continue until further notice.
A Bavarian general decree published this Monday, March 16, for example, relates to “events” and “gatherings” without detailing what exactly is covered. There are, however, strong indications that recordings or interviews with passers-by in public places for reporting purposes do not constitute an “event” or “gathering” as long as no permission for movie shoots is required.
Question: With many in the film industry worried about their health, what should be done if they don’t show up on set, even if there is no suspected case of coronavirus?
Answer: In cases where workers fail to show up on set without excuse, there will be no obligation to pay them. From a legal point of view, after warning letters announcing a penalty of dismissal have been ignored, they may be terminated without notice.
Question:Are employers/producers allowed to send workers to an area with infections, for example, if the shooting takes place there?
Answer: The mere fear of workers that they might become infected with a virus is not sufficient to refuse travel for business purposes; the duty to work also extends to business trips. The case is different if the Foreign Office has issued an official travel warning. Workers do not have to travel to such areas or countries, as it would be inequitable to issue such instructions. Nevertheless, the instruction to go on a business trip may also be “inequitable” below the threshold of travel warnings. In any such cases, the interests of the workers must be weighed against employers’ business interests.
Question: If productions do not have a suspected or actual case of infection, are producers allowed to order mandatory leave for the purposes of minimizing risk?
Answer: It is only possible to unilaterally order leaves if workers’ interests are taken into account. Their interests may be opposed to immediate granting of leave, for example, if vacation times have already been firmly scheduled for later in the year or leave periods are needed for childcare at other times. In general, it should now be possible to unilaterally order leave for vacation periods that were not taken in the year prior. In our opinion, this will only apply to a very limited extent for current year vacation periods, however, particularly without advance notice – if at all, then only in relation to a smaller portion of the remaining leave entitlement.
Question: Since Monday, March 16, schools and pre-schools have been closed in most German states. Are actors/actresses or other participants in a production permitted to stay home from work even if this results in the cancelation of production days, if they have to look after their children and were unable to organize childcare by any other means?
Answer: Under Section 616 German Civil Code, if workers are prevented from performing services for personal reasons, through no fault of their own, for a relatively insignificant period of time, they may stay away from work and retain their right to contractual remuneration. Compulsory childcare is recognized as such a reason. The law does not stipulate the length of a “relatively insignificant period of time.” In general, five working days will still be considered as falling under this provision. In some instances, however, even longer periods will be regarded as permissible.
Question: In such events, may producers offer to provide childcare on the set or on separate premises organized by them?
Answer: As long as this relates to individual childcare, which is not subject to the requirement to close childcare facilities, and if other conditions for the permissible care of children are met, any such offering may lead to participants in the production no longer being “prevented” from performing their services, thus no longer giving them the option of exercising their right not to perform their work.
Question:If employers/producers learn that one of the participants in the production has been infected with the coronavirus, will they have to release them from work even if any such individual declares to still be able to perform their work for the few remaining shooting days?
Answer: As employers/producers have a duty to care for the health of all participants, they may not accept any such offer and must release the participant from work.
Question: If employers/producers learn about a confirmed case of infection in the production team, will they be allowed to notify other individuals involved in the production?
Answer: Although information on workers’ health is personal data that is subject to increased protection under the GDPR, employers are nonetheless entitled and obligated to notify at least all those participants who have had closer contact with the individual infected with the coronavirus because of the employer’s duty of care towards all other participants.
Question: How about if there is only a suspected case of infection?
Answer: If employers/producers learn that participants have been in a risk area within the last two weeks or has had contact with persons suffering from coronavirus, they will not be obligated to release them from work if the participants do not show any symptoms. If participants do show the typical symptoms (such as fever, dry cough, etc.), however, and an infection with the coronavirus cannot be unequivocally ruled out, employers/producers will be obligated to release such individuals from work to protect the other participants in the production.
Question:As an employer, am I allowed to demand that workers who are still on the set and who are suspected of having an infection undergo medical examinations?
Answer: Orders by employers for workers to undergo medical examinations are inadmissible invasions of workers’ protected personal rights or the rights to physical integrity. In the event of an infection with the coronavirus, employers may not obligate workers to be vaccinated as soon as a vaccine is available, either.
Question:As an employer, what protective steps do I need to take? For example, do I have to provide disinfectants to reduce the risk of infection?
Answer: Employers need to comply with the general principles of occupational health and safety and meet their duty of care allowing workers to perform their work without risk (Section 618 German Civil Code). Whether it is necessary to provide disinfectants depends on the individual case, such as on how much contact workers have with other individuals and therefore how high the risk of infection is. If employers decide to do so, for example, they can obligate workers to regularly use disinfectants. This is covered by the employers’ instruction rights as a measure designed to prevent the spread of the virus.
Question: If the production has to be discontinued because of key participants being sick, because of official orders, or because of shooting subjects that are suddenly no longer available, are producers able to dismiss all participants with immediate effect or at least after a notice period?
Answer: Most participants in a production are employed for a limited period of time. Those employment relationships may only be terminated with notice where such has been individually agreed, Section 15(3) German Part-Time and Fixed-Term Employment Act, although this is rarely the case in practice. According to Section 626 German Civil Code, however, even in such contractual relationships, each party may give notice of termination without observing a notice period for cause if facts are present on the basis of which the party giving notice cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed time of termination, taking into account all circumstances of the individual case and weighing both parties’ interests. A necessary phase-out period in the duration of the otherwise applicable ordinary notice period is also to be taken into account, which for fixed-term contracts with a term of up to two years will frequently be four weeks effective at the 15th day of a month or the end of a calendar month.
Question: What happens if a quarantine is ordered by health authorities?
Answer: According to Section 56 German Protection against Infection Act, anyone subject to a prohibition in exercising their employment due to a quarantine ordered by the authorities and suffering a loss of earnings as a result, is entitled to monetary compensation. Any such compensation is governed by the respective loss of earnings, i.e., net remuneration. Compensation is granted in the amount of the loss of earnings for the first six weeks and in the amount of sickness benefits as of the beginning of the seventh week, provided that the loss of earnings does not exceed the compulsory insurance limit of the statutory health insurance fund. For 2020, this limit is EUR 62,550.00 (gross)/year.
For workers, employers must pay compensation to the competent authority for a maximum of six weeks, in advance. Upon request, however, employers will be reimbursed by the authority for the amounts paid to workers. Employers may also apply to the competent authority for advances for this purpose.
In addition to compensation from the competent authority, self-employed individuals whose business is suspended for the duration of the measure will receive adequate compensation for any unfunded operating costs that continue to be incurred during said period.
Question: What happens if a permission to shoot movies is not granted on the basis of a general decree or an existing permission is withdrawn?
Answer: In the event of unexpected disruptions to the business through no fault of their own, including externally ordered business shutdowns, the risk, and thus also the wage costs, are in principle also borne by employers (Section 615 German Civil Code). In this case, workers retain their right to remuneration even if they are unable to work. Special provisions apply to workers who themselves fall under the Protection against Infection Act or the provisions on short-time work.
Question:Do employers have a claim under the Protection against Infection Act for reimbursement of wage costs which have to be borne by them despite a business shutdown based on the general decree?
Answer: No, employers cannot claim compensation under the Protection against Infection Act for wage costs incurred in this respect. Claims for compensation under the Protection against Infection Act exist only for measures ordered by the competent authority on the basis of this law. According to Section 56 Protection against Infection Act, only those individuals (and their employers which have paid wages to them under Section 56(5) Protection against Infection Act) who, under the Protection against Infection Act, are deemed spreaders, suspected of being spreaders, or suspected of being infected and who are subject to a ban on professional activity in accordance with Section 31 Protection against Infection Act are entitled to claim compensation under the Protection against Infection Act. The same applies to individuals who have been or will be separated as spreaders or those suspected of being spreaders, i.e., who have been ordered by the authorities to remain in quarantine in accordance with Section 30 Protection against Infection Act. Individuals who are spreading pathogens and can therefore be a source of infection for the general public without themselves being ill or suspected of being ill are deemed to be spreaders. Persons are suspected of being infected if it can be presumed that they have absorbed pathogens without being ill, suspected of being ill, or being spreaders. Persons are suspected of being ill if they exhibit symptoms that suggest that a certain communicable disease is present. Self-employed individuals, i.e., persons who are not subject to rights of direction and who are not integrated into a foreign work organization whose business is suspended for the duration of a measure under the Protection against Infection Act, may, however, pursuant to Section 56(4) sentence 2 Protection against Infection Act, apply to the competent authority for appropriate reimbursement of uncovered business expenses that continue to be incurred during such period.
Question:Are producers/employers able to simply order short-time work for their workers?
Answer: It is a requirement for the option of ordering short-time work that this is expressly governed by the parties in the employment contract. Appropriate provisions may also be made in a separately agreed supplementary contract.