The coronavirus is all over the news. What German employers need to consider now.
What are an employer’s general obligations with regard to health protection?
Employers have a duty of care towards their employees. As such they must inform their employees about any existing health risks and provide appropriate preventive measures and rules of behaviour. Where specific health risks are known, the employer may also be obliged to provide certain protective clothing (e.g. face masks) or disinfectants.
Can employers oblige employees to work from home?
Employers may not instruct employees to work from home as this is not covered by the employer's general right to give instructions. Instead, a prior agreement between the employer and the employee is required.
Is an employee allowed to refuse to come to work for fear of contagion?
No. Provided that the employee is healthy they cannot refuse work solely on the basis of their fear of an increased risk of contagion. Should the employee nevertheless stay away from work, the employer can consider sanctions (such as a formal warning or a dismissal, depending on the particular situation). The employee can refuse to work only where it is clearly unreasonable for anyone to perform the work.
How should employers behave where infection with covid-19 is either strongly suspected or actually confirmed?
Where there is good reason to believe that an employee poses a risk to the health of other employees, for example because they have been in a risk area or in contact with a person known to be infected, the employer may unilaterally exempt this employee from their duties and/or deny them access to the company premises. The employer must also work closely with the responsible health authority.
What are the employee’s rights and duties if they are confirmed to be infected with covid-19?
The employee is obliged to inform the employer immediately of their incapacity for work and its probable duration. Usually, employees do not have to disclose the type of illness they are suffering from but since covid-19 is a highly infectious disease, one can assume that the employer has a right to know. If the employee’s incapacity for work lasts longer than three calendar days, the employee shall submit a medical certificate confirming the incapacity for work and its expected duration no later than on the following working day. If the incapacity for work lasts longer than stated in the certificate, the employee must submit a new medical certificate.
Employees who are unable to work due to illness are entitled to receive continued payment of their remuneration from their employer for six weeks. If the illness lasts longer than six weeks, the employer’s payment obligation ceases to apply. Employees who are ensured in the statutory health insurance are subsequently entitled to sickness allowance to be paid by the statutory health insurance provider for a period of up to 72 weeks.
What happens to employees who are quarantined (without an infection being confirmed)?
If there is only a suspicion of an infection and the authorities order the employee to be quarantined, the employee is not entitled to continued payment of remuneration from their employer. Instead, they receive compensation from the state. For the first six weeks, the employer must pay this amount upfront but will be reimbursed by the responsible health authority on request.
What happens if an employee cannot come to work due to their child being infected?
If the child itself is sick and has to be looked after by the employee, the employee may stay away from work. In this case, he or she may - depending on the contractual arrangements in the individual case - have a claim against the employer for continued payment of remuneration for a few days. If there is no such claim, the statutory health insurance fund will pay a portion of the employee’s remuneration for a certain period of time, provided the employee has statutory health insurance and their child is under 12 years of age.
What happens if an employee cannot come to work due to their children’s nursery/school being closed?
If the child is not sick but has to be cared for at home because the nursery/school is closed, the employee may also stay away from work if there is no other possibility of care (e.g. by relatives or friends). However, this period is usually limited to one or two days. During this period, the employee retains their claim to remuneration. After that, the employee must either take leave or accept to be released from work without pay.
What happens in case of an office closure?
If an employer shuts down an office as a precautionary measure to protect the employees, the employer also bears the financial risk. The employees are entitled to continued payment of their remuneration. The situation is different if the company is ordered to close by the health authorities. In this case, the employer may apply to be reimbursed by the state.