By Katja Giese, Firm:  kliemt.de  

The number of people infected with corona increases daily. This also increases the fear of being infected at work. Does that mean employees can refuse a business trip to China? Is there an ‘extraordinary right’ to work from home? Can an employer prohibit the use of face masks? This article answers these and other employment law questions.

Background

At the time of writing, the number of deaths caused by the novel corona virus continues to rise, and there are an increasing number of cases of infection outside China. The World Health Organization has already declared a global health emergency. Fear is also spreading among German employees, after employees of the automotive supplier Webasto became infected at work. What rules apply to employers and employees in this exceptional situation?

1. Can an employer order a trip to China?

In general, yes. An employee has no general right to refuse performance. If the employer orders a business trip, it exercises its right to issue instructions under the employment contract. Although the employer is entitled to do so, it must use ‘reasonable discretion’ and balance the interests of the employee and its own.

For example, if there is a travel warning from the German Foreign Office (currently only for Hubei Province, where the city of Wuhan is also located), requiring an employee to take a business trip to China is unlikely to meet the criteria for ‘reasonable discretion’. In other cases, an employee's individual situation, such as a pre-existing illness, may play a role in the balance of interests and result in the employee being able to refuse a trip. If balancing the employer and employee’s interests favours the employer and there are no other reasons to consider the employer’s request ‘unreasonable’, the order will be considered binding on the employee, who must go on the business trip.

2. Can employees exceptionally work from home?

The mere fear of an infection does not entitle employees not to come to work. In some organisations, it is common practice for employees to have the right to work from home, for example during flu epidemics. The employer alone can decide whether this is also the case for coronavirus. Unless and until a special arrangement for a temporary home office has been made, the place of work continues to be the contractually agreed location: in case of doubt, it will be at the organisation’s premises. If an employee does not turn up for work, his or her employer can issue a warning and ultimately even terminate the contract.

3. Can an employer prohibit the use of facemasks?

This case caused a sensation last week. An employee of Düsseldorf Airport had equipped herself with a facemask to avoid infection. The shift leader sent her home and forbade her colleagues from wearing facemasks, as this would spread panic. The ban has since been lifted and employees are free to wear facemasks. The employer was correct to lift the ban, since it has a special duty of care towards safety employees. As a result of their intensive contact with travellers, employees may be exposed to particular risks of infection. In any case, they must be free to protect themselves against infection by employing measures such as wearing facemasks, especially if this does not affect their work.

4. What other duties do employers have?

The employer has a general duty of care towards his employees. This includes ensuring that certain hygiene regulations are observed and that measures are taken to prevent the spread of diseases. Many sanitary facilities therefore contain disinfectants and hygiene recommendations, for example. In special cases (workplaces in health care, transport, logistics or sales) there may even be an obligation to take special protective measures and, for example, to provide breathing masks.

In addition, an employer has a duty towards its employees to inform them about risks of infection and illness, especially if the employer is already aware of concrete indications of such risks (e.g. if there are colleagues travelling to China).

5. Can the employer request information and send an employee home as a precaution?

Yes. An employer can ask whether a sick employee has been in a risk area. If an employee has returned from a risk area, the employer can order them to stay at home for a few days as a precautionary measure to prevent possible infection. They must continue to be paid during this time.

6. Is there an entitlement to continued pay in the event of quarantine?

In extreme cases, the authorities can take measures to prevent the further spread of diseases. For example, employment bans can be issued or the observation or quarantine of certain individuals can be ordered. There is no entitlement to continued pay in the event of an employment ban under infection protection law resulting from a mere suspicion of illness. However, the employee concerned will be entitled to compensation in accordance with s56 (1) of the Law on the Prevention and Control of Infection Diseases. This is based on the amount of sickness benefit.

7. Can an employer order additional overtime if many colleagues are absent?

Yes. An employer can order employees to work overtime if they are able to do so and if a project or assignment is otherwise in danger of failing due to understaffing as a result of illness. In such an ‘unforeseeable emergency’, employees are obliged to work overtime due to their general duty of loyalty toward the employer.

Conclusion

In times of increased health risks, employers have a number of ways to protect employees. If an employer is aware of a specific illnesses in the workforce or is aware of a particular risk, it is obliged to take special protective measures. As a rule, the employee should not suffer any economic disadvantage from this. However, employees are obliged to comply with the protective measures and follow the employer's instructions. There is no right to refuse to work, or right to ‘corona leave’.

At the time of writing, current knowledge indicates coronavirus is no more dangerous than influenza. Even during a severe flu epidemic, nobody thinks special rights will apply. In contrast, measures such as video-conferencing instead of live meetings are a common and effective prevention measure.