The Coronavirus 2019 - ncov epidemic that started in China is unfortunately now spreading across Europe with many experts now predicting a global pandemic. Various measures have been taken and recommendations issued by public authorities to contain the spread of this virus, but employers are so far having to take their own decisions and make some challenging judgment calls. Although it is business at usual at most companies, we have observed a wide range of reactions so far, including requiring staff to work from home, putting certain employees in quarantine, requesting employees to take additional holiday and above all cancelling physical meetings and travel.
We have listed 10 of the most pressing questions clients are asking us at present.
1. Do I have any specific obligations to protect my employees in relation to the Coronavirus 2019 - ncov?
Under German law, employers have a general duty of care as well as specific obligations to ensure the well-being of their employees. This requires the employer to adequately protect employees from an infection with the Coronavirus 2019-ncov. Appropriate actions may be:
- Check recommendations of authorities (e.g. the federal health ministry, the Robert-Koch-Institute and the competent local health authority as well as the Federal Foreign Office) on a regular basis and keep employees appropriately informed
- Take appropriate preventive measures to reduce the risk of an infection at the work place (e.g. provide hand sanitizer, direct employees who have recently travelled to affected areas to work from home, avoid physical meetings and business travel)
- In relation to employees who are required to take business trips: reconsider your travel policy to avoid employees travelling to affected areas in particular
2. Can I, as an employer, place an employee on quarantine?
Only the competent authorities can decide to place an employee on quarantine, meaning that even an employee who recently travelled to affected areas has a right to work. However, as the employer also has a duty of care towards its other employees, employers may direct employees returning from affected areas to stay at home for a certain period. The employee would however be entitled to his/her full salary even if he/she does not perform any duties.
3. Authorities placed my employee on quarantine. Do I have to pay him/her?
If the quarantined employee is ill, employers will have to continue to pay the salary based on statutory provisions in the same way as with any other illness, i.e. for the first six weeks after which the health insurer would meet the cost. If the employee is quarantined without being infected (i.e. because he/she had contact with infected individuals), the employer will also have to pay the employee’s (net) salary for the first six weeks but is entitled to a refund by the competent authority.
4. Can I instruct my employees to work from home even in absence of an appropriate policy or clause in the employment agreement?
If a large number of employees is unable to come to work (i.e. either because of illness or due to being placed on quarantine), this may cause a material disruption of the employer’s business activities, leaving employers with the question whether they are entitled to ask employees to work from home even if there is no applicable policy or agreement in the employment contract. In cases of emergencies, employers are entitled to instruct employees to perform activities not stipulated in employment contract (including working from home, if possible) and employees would have to comply with these instructions as part of their fiduciary duties towards the employer. However, whether working from home is acceptable for the employee will have to be assessed on a case-by-case basis.
5. Can employees refuse to come to work?
Employees cannot refuse to come to their regular place of work e.g. because of a general concern of becoming infected. The only exception is if the coming to work constitutes an unacceptable risk for the employee’s wellbeing (e.g. if co-workers have been positively tested to be infected with the Coronavirus 2019-ncov).
6. What if the employee is unable to come to the office because public transportation has been closed and cannot work from home?
This is a risk that is in the employee’s “sphere”, meaning that if the employee cannot get to work, the general rule “no salary without work” applies. Employers may however consider allowing employees to use their holiday for the periods during which they are simply unable to travel to the workplace.
7. My employee has a child whose school has been closed and cannot come to work. Do I have to pay him/her?
YES, at least for a while.
Employees in Germany who have no other childcare available are entitled to a certain number of additional paid holidays, depending on the respective case. Some companies have specific policies in place or have provisions in their employment contracts clarifying the conditions under which employees who have to take care of their child are still entitled to their salary.
8. Can employees refuse to take business trips?
Employees who are required to travel for work based on their employment contract e.g. sales staff cannot refuse to go on business trips unless there is an official travel warning relating to the relevant area, e.g. currently Iran or China.
9. Is there anything employers can do if their business is materially impacted?
In general, employers bear the operational risk and are of course liable to continue to pay the employees’ salary even in the event of e.g. a significant drop in business. Employers in Germany have various temporary and permanent restructuring options including “short time work” for a certain period (provided there is a legal basis, e.g. a collective agreement allowing to unilaterally reduce the working time) which may be state funded (if the applicable conditions are met, the state will pay 2/3 of the employees’ net salary during the short time work period), permanent changes to roles and terms of employment and ultimately redundancies. In most cases, the works council and/or unions will need to be consulted and it can be a slow process.
10. What else can employers do to further prepare for a Coronavirus 2019-ncov epidemic?
Appropriate actions include:
- Holding regular management calls ideally with HR to regularly assess the situation
- Talk to your business partners
- Make sure that employees are equipped to work from home for a longer period
- Ensure key roles and departments can function effectively
- Communicate with your works council and staff regularly
- Consider introducing some of the temporary measures outlined above
- Be sensitive to the worry for employees
- Be aware of the impact of the crisis on any ongoing projects, including restructurings and ongoing negotiations
Further, to assist companies in Germany to prepare their businesses for a potential pandemic, the Federal Office for Civil Protection and Disaster Planning has published a manual providing for recommendations of actions before, during and after a pandemic as well as for checklists. The manual is available as PDF on the homepage of the Federal Office for Civil Protection and Disaster Planning (www.bbk.bund.de).