The outbreak of novel coronavirus (“Coronavirus” or “COVID-19”) affects employment relationships in Germany. Employers are facing a number of issues on how to deal with the current situation and potentially upcoming scenarios.
The intention of this factsheet is to provide answers to frequently asked questions arising for employers and their employees in Germany. The answers reflect the current situation regarding the expansion of the Coronavirus in Germany. As the situation may further develop and change quickly, answers may change as well and may require amendments from time to time.
We will continue to monitor the situation in Germany including information published by the competent German authorities (such as the local health authorities (Gesundheitsämter) and the German federal disease control and prevention institute (Robert Koch Institute)).
The answers below are generally based on the assumption that no works council has been established at the employer’s business in Germany. Question 9 highlights some key implications for employers in Germany with a works council.
Q1 - WHAT MEASURES ARE EMPLOYERS IN GERMANY REQUIRED TO TAKE IN RESPONSE TO THE CORONAVIRUS?
- Every employer has a general duty of care (allgemeine Fürsorgepflicht) towards its employees. The employer is obliged to take all reasonable measures in order to protect its employees, especially from infections at the workplace.
- With the current situation, reasonable measures will generally include (i) providing general information to employees about how to reduce the risk of an infection (e.g. general hygienic precautions; avoiding close contact with people having symptoms; elbow cough; not touching the face; etc.), (ii) providing alcohol-based hand sanitizer and (iii) asking employees to stay home when they feel sick.
- In addition, it will generally be reasonable to further request employees to immediately notify the employer if either (i) they have been in direct or indirect contact with an infected person or a person that is in government required quarantine, or (ii) they have traveled to specific risk areas (especially such areas for which specific warnings have been issued by German government authorities, Reisewarnungen).
- It would not be permissible to prohibit employees to undertake personal travel to specific areas, even if these have been declared to be risk areas by government authorities. However, the employer could request that employees returning from specific risk areas do not attend work for a reasonable time period (approx. 14 days based on current incubation time period data). The employer would be obliged to continue paying employees their full remuneration in cases of such self-quarantine measure.
- If an employer learns that one of its employees (a) has been infected, (b) is in government required quarantine or (c) has been in contact with a person who is infected or in government required quarantine, the employer should generally as a measure of precaution consider closing the affected office (and ask employees to telecommute, if possible). The closure should occur for a reasonable period of time, generally either until (a) it has been confirmed that there has been no infection or (b) for approx. 14 days following the affected employee’s last day at work (based on current incubation time period data). Further, the affected workspace should be isolated and/or disinfected, as reasonably possible. Nevertheless, the employer will need to keep in mind an affected employee’s right to privacy (and potentially of the employee’s family) and be careful with disclosing information on an affected employee’s situation unless such employee has provided consent.
Q2 - CAN AN EMPLOYER IN GERMANY IMPLEMENT SAFETY CONTROLS BY NON-INVASIVE TEMPERATURE SCANS OF EMPLOYEES AND/OR CUSTOMERS?
- German law generally prohibits employers from unilaterally conducting health assessments on employees or customers (unless such assessments are strictly required for the employee’s/customer’s specific activity which generally not be the case). At the same time, employers are obliged to take adequate measures to protect their employees and other individuals visiting the office. These conflicting interests need to be balanced.
- Given the current Coronavirus situation in Germany and guidance provide by public and private institutions, it is our assessment that the employees’ and the visitors’ interests in not being subject to health assessments currently rather clearly prevails. Therefore, safety controls through the use of non-invasive temperature scanners are likely currently not permissible in Germany. This could change, especially in case of updated guidance from German authorities.
Q3 - ARE EMPLOYEES OBLIGED TO CONTINUE WITH BUSINESS TRAVEL?
- If an employee generally is obliged to perform business travel as part of his or her duties under the employment agreement, this obligation will generally continue to apply regardless of the Coronavirus.
- However, employees are not obliged to travel to areas for which the German Foreign Ministry (Auswärtiges Amt) has issued a travel warning. As far as we are aware, such travel warnings have currently been issued for certain areas of South Korea and China.
- Further, the German Foreign Ministry recommends avoiding unnecessary travel to all of China and other areas which are considered risk areas (currently, this seems to cover certain parts of Iran and certain parts of Italy). An employer should carefully review whether travel to any such areas is strictly necessary. If not necessary, the employee will not be obligated to travel. The higher the risk in an area, the higher the bar will be for a trip to be considered “necessary”. It will also need to be taken into account whether the purpose of the trip can be achieved with less endangering methods (e.g. utilizing telephone or videoconference systems).
- Where an employee conducts business travel even though not being required to do so in accordance with the above principles, the employer could potentially be subject to damage claims (if any damages occur, such as treatment costs, emergency evacuation costs, and similar).
- If an employee refuses to travel to a respective area (even to regions other than risk areas), the employer ultimately cannot force the employee to travel. However, such refusal by the employee can constitute a breach of contract with formal disciplinary measures applying (such as a formal warning and, ultimately, termination of employment).
Q4 - WHAT IS A COMPANY´S OBLIGATION TOWARD EMPLOYEES WHO CANNOT COME TO WORK OR TELECOMMUTE DUE TO MEDICALLY (OR GOVERNMENT) REQUIRED QUARANTINE OR IN CASE GOVERNMENT DECIDES TO CLOSE A SITE AND EMPLOYEES CANNOT TELECOMMUTE?
- The employer is obliged to continue payment of full remuneration for a period of up to six weeks (same duration as continued remuneration in case of sickness). If an employee is affected for more than 6 weeks, the employer would no longer need to continue the remuneration (but the employee would instead receive a reduced continued payment from the competent health insurance [in case of sickness] or from the health authority [in case of quarantine]).
- In case of a quarantine, the employer can apply for a refund of the remuneration it had to continue (i.e. during the six week period) from the competent local health authority provided that the quarantine was a necessary measure (which will be the case if imposed by the government, but not necessarily if merely recommended by a doctor). The application would need to be filed within three months of the respective quarantine measure.
Q5 - WHAT IS A COMPANY´S OBLIGATION IN CASE THE COMPANY DIRECTS EMPLOYEES NOT TO COME TO WORK OR TO TELECOMMUTE OR IN CASE A COMPANY DECIDES TO CLOSE A SITE?
- The employer is obliged to continue payment of full remuneration. Depending on the specific reason for office closure, the employer might be able to apply for statutory short term work benefits in such scenarios (see Question 8).
- It should be noted that employees can only be required to work from their home offices if that has been agreed to in their employment agreement or otherwise. Without such agreement, employees could refuse to work from home, even in case of an office closure, while still remaining entitled to continued payment of full remuneration.
- Further, in case employees are instructed to work from their home offices, there is a risk that such employees could claim reimbursement (such as partial rent, utility costs, etc. for the use of their home offices).
Q6 - WHAT IS A COMPANY´S OBLIGATION IN CASE EMPLOYEES DECIDE NOT TO COME TO WORK AS A MEASURE OF PRECAUTION WITHOUT ANY DIRECTIONS OF THE COMPANY AND WITHOUT MEDICAL DIRECTIONS OR SYMPTOMS?
- Such cases generally constitute an unauthorized leave. Remuneration does not have to be continued and disciplinary action can be taken (e.g. starting with an informal or formal warning and up to termination of employment).
- The situation can be different where an employees is not able to attend work for a relatively brief period of time (no more than for a couple of days) due to specific personal reasons. Such scenario could include doctor’s appointments to clarify a self-suspected infection, or ensuring that necessary arrangements are made for a close relative such as an infected child, or similar situation.
Q7 - UNDER WHAT CIRCUMSTANCES CAN A COMPANY REQUIRE AN EMPLOYEE TO USE VACATION ENTITLEMENT IF DIRECTED TO REMAIN OUT OF WORK AND CANNOT TELECOMMUTE?
- If an employee is directed by a doctor (upon presentation of a doctor's certificate) or the government (quarantine measure) to not continue working, then the employer cannot direct an employee to use any vacation entitlement for this purpose.
- If an employee wishes for mere personal reasons (such as fear of infection even though no medical measure or government quarantine has been ordered) to remain at home, then the employer can ask the employee to make use of vacation entitlements for such purpose. If the employee refuses to do so, but still does not attend work then the answer for Question 6 can apply.
- If no such cases exist, then an employer can potentially decide unilaterally with equitable discretion that employees shall make use of vacation entitlements. However, there is no clear case law on how extensively an employer can make use of this right. Likely, requiring employees to make use of their entire vacation entitlements would not be considered a decision with equitable discretion. Requiring employees to make use of one to three weeks could be considered a decision with equitable discretion provided that (a) employees do not have overriding personal interests (e.g. where employees state that they require the entitlement at other times during the year for other reasons) and (b) some notice is provided to the employees prior to commencement of the instructed vacation. Thus, such imposed vacation could be used in case there is a lack of work due to virus-related impacts (and before making use of more severe measures such as short time work (see Question 8) or making employees redundant).
Q8 - WHAT ARE THE BENEFITS A COMPANY CAN APPLY FOR IN RELATION TO SIGNIFICANT CORONAVIRUS IMPACTS (E.G. SIGNIFICANT VIRUS-RELATED REDUCTION IN BUSINESS, AUTHORITY-ORDERED AND VIRUS-RELATED CLOSURE OF THE OFFICE, OR SIMILAR)?
- The employer could consider implementing short term work (Kurzarbeit) and applying for statutory short term work benefits (Kurzarbeitergeld). This would involve reduced working hours and reduced remuneration (up to reducing the working time and remuneration to 0).
- If the requirements for short term work are met, statutory payments to partially make up for the reduced remuneration could be granted for a period up to a maximum of 12 months. Key requirements for the benefit are (a) reasons for the reduced work/remuneration beyond the company's control (for example, lack of work due to Coronavirus outbreak or related closure of customer sites), (b) short term work for at least 1/3rd of the employer's workforce in Germany, (c) significant remuneration reduction (more than 10%) and (d) taking other reasonable measures first (such as requiring employees to make use of their annual vacation entitlements, see Question 7). 8.3 This benefit would especially generally require (a) individual agreements with the employees and (b) a formal application at the competent employment agency.
Q9 - DO THE ANSWERS ABOVE CHANGE IN CASE A WORKS COUNCIL HAS BEEN ESTABLISHED AT THE BUSINESS IN GERMANY?
- Yes. Most potential measures described above are subject to a mandatory co-determination right of the works council. Therefore, a corresponding agreement with the works council would need to be entered into prior to the implementation of such measure.
- In some cases, the existence of a works council can also simplify the process. This is especially true with regard to short term work as it would not be required to enter into individual agreements with all affected employees, but rather one single agreement could be agreed with the works council.
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