Special newsletter on employment and labour law: How COVID-19 relates to HR - guidelines for employers

One of the most discussed topics in the current wave of infection is mobile/remote working. May an employee ask to work from home? May the employer impose working from home?
 

A. No entitlement on the part of the employee

There is no general entitlement for employees to work from home. Such a claim can only exist by contract (either in the employment contract itself or by supplementary agreement) or under collective law (especially by company agreement). In all other respects, the work is to be carried out at the place agreed in the employment contract.

Corona does not change this legal position. From a practical point of view, however, the employee could be entitled to a claim if it were no longer reasonable to expect him/her to take up work in the company and he/she were permitted to stop work while continuing to receive remuneration. In our view, however, such a case is only conceivable if the employer does not take any other suitable health protection measures (e.g. spatial separation, health checks or hygiene measures). In addition, it should be possible to carry out the work from home in the first place.

Practical tip: Because of the current uncertainty, it is of course useful to check which employees can work from home. The contracting parties are of course free at any time to agree on the possibility of mobile/remote working for a limited period of time.

B. Unauthorized absence is inadmissible

Unauthorized absence - without a certificate of incapacity, without an official order for quarantine or without consultation with the employer - is a violation of the main contractual duty to perform. Even the abstract risk of infection does not entitle the employee to stop working. If taking unilateral measures the employee in any case risks a warning and, in the event  of recurrence, dismissal. An unauthorized stoppage of work is conceivable only in exceptional situations (e.g. if the current protective measures are unsuccessful and there are cases of infection in the department of the employee concerned, or the employer does not follow official directives).

C. Instructions issued by the employer

The existing duties to protect requires the employer, among other things, to take appropriate measures to protect the life and health of workers. In this respect, the employer must ensure that its employees are adequately protected against infection by other employees who are ill - or by third parties, such as business partners.

For mobile working, the same principles apply here as for a possible claim on the part of the employee. But even where this is not laid down in employees' contracts, or in a collective agreement, there are cases where the employer can direct remote working in view of the mutual obligation to show good faith and duty of care. Of course, this applies only if the employee is actually able to do so and if this instruction protects the health of the employee concerned as well as that of other employees. Protection of health then outweighs the personal interests of the employee concerned. Even if the employee in this case does not comply with the instruction to work remotely and a labour court actually considers the instruction to be invalid, this will routinely be a case where Section 615 2nd sentence of the German Civil Code (Bürgerliches Gesetzbuch, BGB) applies and the employer's obligation to continue to pay wages will cease for this reason.

This means: If the employee refuses to work from home, although this is possible and reasonable, the employer has no obligation to pay compensation.

A. Basic information

As mentioned above, the employer has a duty to take appropriate health protection measures. Therefore, if there is a concrete possibility of infection, companies must take appropriate and reasonable measures. The following measures, among others, are conceivable:

• information about the risk of infection and minimisation of the risk;
• the transfer of particularly vulnerable employees to other jobs;
• the organisation of the work in smaller working groups;
• the transfer of employees from open-plan to individual offices;
• raising the standard of hygiene; and,
• under certain conditions, the carrying out of health checks.

A legal obligation to implement these measures does not (yet) exist for the vast majority of employers. However, raising the standard of hygiene in particular also appears to make sense from the current perspective. The guidelines and tips from the Robert Koch Institute and the Federal Centre for Health Education (BZgA) offer good orientation (especially with regard to coughing and sneezing etiquette and washing hands).

B. Health checks at the factory gate

Some employers have recently introduced health checks at factory gates - similar to the way body temperature is measured at airports. This is a very pragmatic solution that is in the interests of the entire workforce and therefore also meets with great approval from works councils. In the course of introducing such measures, employers should pay attention to a documented balancing of interests. These measures can be permissible either on the basis of a company agreement or - where there is no works council - taking into account the employer's duty of care (see above on the mobile/remote working instruction).

Circumstances relevant to the carrying out of such checks:

• there is already a confirmed case of infection in the company;
• employees of the company are in quarantine by order of the authorities;
• close business relationships - including parent company, production sites or trading partners - in particularly affected areas (e.g. China or Italy);
• large enterprises in small towns or villages with confirmed cases of infection, if almost every inhabitant is directly or indirectly connected with the enterprise in one way or another (business partners, family members, hotel and catering trade in the locality, etc.)

In the above-mentioned cases, there is a strong case for the employer being allowed to order health checks at the factory gate. It should also be taken into account that contactless fever measurement ultimately allows for control without physical impairment.

If an employee refuses to undergo the health check that has been lawfully introduced after the balancing of conflicting interests, and if he/she therefore does not enter the premises, the employer does not have to pay the employee a salary for this period.

Strictly speaking, the employment contract may contain obligations on the part of the employee to undertake business trips - including abroad - but this is not unlimited. If the employer orders an employee to go on a business trip within the scope of its right to issue instructions, this order must correspond to "reasonable discretion" (Section 106 of the German Industrial Code
(Gewerbeordnung, GewO). To this extent, the employer is obliged to consider the interests of the employee and to comply with the employer's duty of care. In addition, the employer must take measures to protect the health of the employees and/or to protect them against avoidable harm.

If it can be assumed that the planned business trip will pose a considerable risk to the health of the employee in the country of destination, the instructions for the business trip are usually deemed to be no longer based on reasonable discretion. This applies in particular if the German Federal Foreign Office has issued a travel warning for the destination country or region. This standard must always be applied, i.e. even without corona. As long as there is no official travel warning, employers can generally organise a business trip.

Note: Currently there is only a partial travel warning from the German Federal Foreign Office for Hubei Province. All unnecessary travel to the rest of the territory of the People's Republic of China (with the exception of Hong Kong and Macao) is, however, advised against. Employers are advised to keep an eye on the updates on the German Federal Foreign Office website.

If an employer authorises a business trip without considering the above points, the employee may refuse to travel without fear of disciplinary action. However, the employee must inform the employer that he/she will not be travelling.

A. Continued payment of wages

If an employee is unable to work owing to illness, the generally known rules on continued payment of wages in the event of illness apply. This also applies, of course, if the employee falls ill and is unable to work owing to the coronavirus.

If an employee is not unfit for work but cannot resume work for other reasons, there is usually no entitlement to continued payment of wages. This is the case, for example, if the employee is in quarantine or cannot make a planned return journey to Germany owing to the suspension of (air) transport. An exception can be made if the prevention is only for a "relatively insignificant period of time", i.e. no longer than five days. However, this does not apply if the application of Section 616 of the German Civil Code is precluded by the employment contract, company agreement or collective bargaining agreement.

B. Loss of earnings according to the German Protection against Infection Act (IfSG)

If an employee is in quarantine owing to an official order, there is no entitlement to remuneration (see above), but a claim can be made for loss of earnings, in accordance with Section 56 IfSG. In such a case, the following compensation is granted:

• up to week six: compensation amounting to the loss of earnings (net pay);
• from week seven: compensation at the level of sickness benefit.

The employer pays the compensation to the employee regularly for a period of six weeks (Section 56 (5) IfSG). The employer shall be reimbursed for the amounts paid out by the competent authority on request and in arrears. However, such a request shall be made within a period of three months after the end of quarantine. Which authority is responsible depends on the respective German federal state. Furthermore, it is also possible for the employer concerned to apply to the competent authority for an advance payment of the anticipated amount of the reimbursement, according to Section 56 (12) IfSG.

Check list for loss of earnings in quarantine:

• if an employee does not turn up for work on the grounds that he or she is in quarantine, payment of salary must be suspended;
• the employer must then get the employee concerned to show the order from the competent authority that prohibits the employee from carrying out his/her professional activity (cf. Section 31 IfSG);
• if the official order is available, compensation for loss of earnings is to be paid for six weeks; loss of earnings = "the remuneration (Section 14 of Book 4 of the German Social Security Code) to which the employee is entitled for the regular working time applicable to him/her after deduction of taxes and social security and employment promotion contributions or corresponding social security expenses to an appropriate extent (net remuneration)" (Section 56 (3) IfSG)
• Application to the competent authority for an advance payment.

A further measure from the employer's point of view is short-time working (with state support). Essentially, when either the workforce is largely in quarantine or suppliers are unable to operate. In both cases, operations literally come to a standstill. In this case, short-time working is possible. This must be agreed either with the works council or by individual contract. In view of the risk of contagion, even the individual contractual arrangement of short-time working should be possible almost everywhere in the country.
 

Conditions for short-time working allowance

• There must be an unavoidable, substantial loss of working hours with loss of earnings owing to economic reasons or an unavoidable event - this may be the case, for example, if deliveries are not made owing to the coronavirus or if government actions are taken in connection with the coronavirus which lead to a temporary closure of the plant. The materiality threshold is reached if at least one third of the company’s employees have a loss of working hours of more than 10% in the respective calendar month;
• the loss of working hours is only temporary;
• no notice of termination may be given and the employee shall continue to work after the beginning of the period of work loss;
• at least one person employed in the company concerned must be under the obligation to pay social security contributions;
• the employer must report the short-time working and apply for short-time working allowance within a preclusive period of three months.

The short-time allowance is calculated according to the net loss of earnings and amounts to between 60% (for employees without children) and 67% (for employees with children) of the flat-rate net wages lost.

Note: In the event that short-time working compensation is obtained, a compensation claim for the same period of time is transferred to the Federal Employment Agency in accordance with Section 56 (9) IfSG.
 

Further information on short-time working:

• www.bmas.de/SharedDocs/Downloads/DE/kug-faq-kurzarbeit-und-qualifizierung.pdf?__blob=publicationFile  (in German only)
• https://www.arbeitsagentur.de/news/kurzarbeit-wegen-corona-virus  (in German only)

A. School or kindergarten is closed - what now?

If the school or kindergarten is closed, the employee may stay at home and does not have to come to work if this is necessary to look after a child or to comply with the duty of supervision (personal reason for being prevented). This is regularly the case with children up to the age of 12. However, the employee must have previously tried (unsuccessfully) to find other care, especially from other people living in the household. Depending on the nature of the work and the agreement with the employer, the employee may also be obliged to carry out his/her work from home.

In addition, the employer must be informed in good time about the necessity of providing care, e.g. in order that they can organise a replacement. In general, it is advisable to seek amicable solutions with the employer (e.g. mobile working, changed working hours, time off in lieu or leave).

In principle, the employee retains his or her entitlement to compensation for the period of care if the absence lasts for only a "relatively insignificant period of time", i.e. no longer than five days (exception: exclusion of Section 616 of the German Civil Code, see above).

B. The employee's child falls ill

If an employee's child falls ill with the coronavirus (or other disease), the employee is not obliged to take up work in the company in this case if he/she has (unsuccessfully) tried to find another way of caring for the child. For this purpose, the law acknowledges a claim for unpaid leave of absence, which, depending on the number of children and legal guardians, amounts to between ten and 50 working days per calendar year (Section 45 (3) and (5) of the German Social Code - Book V). This requires, however, that the child is insured under a statutory health insurance scheme and is younger than twelve years of age. In all other cases, the employee may stay at home only if it is unreasonable to expect him/her to carry out the work owing to the illness of his/her child (Section 275 (3) German Civil Code).

The employee also receives his or her compensation for the care and nursing of a sick child in accordance with Section 616 German Commercial Code only for a period of up to five days, if there is no regulation deviating from Section 616 of the German Commercial Code (see above). If the child's illness lasts longer than five days, the employee loses the entitlement to compensation. However, he/she is entitled to so-called child sickness benefit (Kinderkrankengeld) if the child is insured under a statutory health insurance scheme and is younger than twelve years of age (Section 45 (1) and 2 of the German Social Code - Book V). Child sickness benefit amounts as a rule to 90% of the lost net pay and is paid by the health insurance fund upon application of the employee.

C. Holiday entitlements

Section 9 of the Federal Vacation Act (Bundesurlaubsgesetz, BUrlG) provides that leave is not taken into account and must be granted subsequently if the employee falls ill and becomes incapable of working during that leave. However, this applies only if the employee him-/herself is ill and not if he/she is caring for and looking after sick family members. It does not apply either if the employee is quarantined but is not him-/herself incapacitated. The leave is therefore "used up" even if the employee's recovery from care or quarantine does not turn out as hoped for.

Conversely, there is also no obligation on the part of the employee to take leave to care for the child or to accept leave directed unilaterally by the employer. The leave entitlement continues to exist and can be used for other purposes; however, the employee may lose the right to remuneration for the period of absence from work (see above).

The basic leave entitlement is not changed by quarantine or closure measures. In particular, such measures shall not lead to an extension of leave.

The lawyers in our Employment Law Practice Group will be happy to answer any questions you may have on these topics.

There will also be another webinar on the topic of corona on 11 March 2020 from 10-11:30 am: "Update on coronavirus - answers to legal questions from practice". Within the framework of this event, our health protection expert Kerstin Gröne will answer current employment law questions related to corona.