The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. Based on the World Health Organization’s declaration that this is a public health emergency of international concern, the German Federal Ministry of Health have (at the time of writing) raised the risk to the Germany to moderate[i]. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions of employers to clarify legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
As at time of writing, there are no additional mandatory obligations for employers in relation to COVID-19. However, local authorities have closed down some public institutions.
Employers should ensure that they are taking any necessary steps to protect their employees. All employers have a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19 spreading. Such advice may include:
• Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
• Put used tissues in the bin immediately
• Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
• Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they are concerns.
Note, however, that the extent of the obligations above are dependent on the circumstances of the business, and not every employer will have to take extreme measures such as shutting offices completely. Nevertheless, if an employer does not fully satisfy its duty of care to the employee, they may be liable for damages.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer is primarily a data privacy issue. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and the position is complex from a European data privacy perspective. There is a significant difference in how sensitive personal data can be processed in different countries, so the appropriate legal basis will change country to country.
In Germany, employers may review an employee's data subject to express consent. If the employee does not consent to an assessment, then it will only be allowed if required for the administration of the employment relationship or if it would protect a legitimate business interest. So far there is no precedent in German law. However, it is the prevailing opinion that employees' loyalty obligations towards their employer and the interest of avoiding further infection and protecting the health and safety of colleagues and customers will prevail over the individual’s interest to protect their personal data. In such cases, even without express consent, employees would be obligated to provide information to avoid further infection.
Assessments could include requesting the employee to confirm and specify where they have spent the past 15 days in order to assess exposure. Employers may not, however, ask employees to confirm that they aren't infected by requesting a medical certificate as general practitioners aren't checking patients for COVID-19 infections.
Ultimately, the position regarding European data privacy rules and how they impact information relating to COVID-19 is currently unclear. National governments are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance is available.
What are employers' obligations where employees are absent or infected?
In case of an existing infection or a suspicion of an infection the employer should consider early involvement and close coordination with the responsible health authorities. If an employee is infected with COVID-19, the responsible health authorities should be notified in order to seek guidance to best protect the health of the workforce. The authorities can then impose professional bans on activities and quarantines to prevent the virus from spreading. There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. Nevertheless, works councils have a general right to information on health and safety issues, so it is advisable to generally to inform and involve the works council in any measures, also with a view to potential co-determination requirements in relation to changes to the working time, etc.. When doing so to anyone other than the authorities, employers must be very careful to balance the privacy of the individual with the public interest in avoiding the spread of the virus.
If an employee is infected, they will be entitled to continued payment of remuneration (paid by the employer for up to six weeks) as per the statutory rules on compensation in case of sickness.
If an employee is quarantined by the authorities under the German Infection Protection Act, they will be entitled to public compensation for up to 6 weeks for lost earnings and statutory sick pay for any further period. Within the first six weeks, this compensation needs to be paid out by the employer who can claim reimbursement.
In addition to the priority of health protection, the employer should develop a concept as to whether and how operational processes can be maintained.
Potentially Infected Employees
Where an employee has come into contact with an infected colleague, they should be asked to undergo a medical examination, and until the results are available, should be released from work or work from home. As a matter of course, confidentiality has to be observed as far as possible.
In general, if there is a 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, the employer may unilaterally exempt the worker and deny them access to the premises. However, the employee retains their right to remuneration during this exemption period.
If there are too many absentees, employers can order the employees who are in the workplace to work temporary overtime. Employers, in coordination with the relevant works council, can also demand short-time work if they cannot sustain the business due to absences. In case of short-time work, employers can apply for public short-time work subsidies.
Refusals to work or travel
Further, employers should consider their approach to dealing with employees who want to stay at home to avoid being infected. The Employees are under the obligation to perform work. They may not be absent from work on their own initiative due to their fear or abstract risk of an infection. They can't refuse to go on a business trip unless there is a travel warning from the Federal Office for the relevant destination. A refusal may indeed be treated as disciplinary matter (please find more information here.
What are employers' obligations where offices are partially or fully closed?
If a business is closed in Germany due to an official ban, the employees are entitled to compensation (for up to 6 weeks for lost earnings and statutory sick pay for any further period). The initial 6 weeks of payment will be paid out by the employer, who can claim reimbursement from the authorities, and the following period will be paid solely by the authorities.
If a business is closed in Germany by way of precaution but without an official ban, employees will remain entitled to their compensation even if they can not perform their work due to the temporary closure. Employers may be eligible to apply for short-time work subsidies in such circumstances.
Alternatively, working from home can be agreed between the employer and employee so long as the employee is adequately compensated.
Where can employers and employees access local and national advice?
German Employment Agency (Arbeitsagentur) on options for short-time work (Kurzarbeit)