Employment-law aspects of restarting after lockdown - Part 2

Since last week, public life in Germany has slowly begun to resume. In particular, many shops are allowed to reopen. However, a return to business as usual is not an option yet. Companies have to consider different aspects and complex requirements from various angles and with differing goals when getting their operations up and running again. First of all, there are, of course, occupational health and safety requirements, State-specific infection regulations, employment bans and quarantine rules, as pointed out in Part 1. The aim is also to avoid liability for infection within companies. In addition, the organisation of working time and remuneration rules must be examined and, if necessary, adapted. Any state aid received and still needed must not be jeopardised.

Liability risks if an employee becomes infected within the company

Once employees return to work at their business establishments, the risk of a Covid-19 infection from their colleagues increases. As a consequence, liability issues may not be neglected upon the employees’ return. However, there are only a few issues of that kind if occupational health and safety requirements are observed. Apart from that, companies are probably also protected through statutory accident insurance cover in most cases.

• Under section 618(1) German Civil Code (Buergerliches Gesetzbuch), employers are generally under a duty to organise work in such a manner that employees are protected against danger to their life and health to the extent permitted by the nature of the work to be performed. As regards the employers’ regulation and organisation requirements, these duties are specified by the German Occupational Health and Safety Act (Arbeitsschutzgesetz). Section 14 and section 12(1) sentence 1 German Occupational Health and Safety Act state that employers have to sufficiently and reasonably instruct their employees on safety and health protection at the workplace. To enable employees to identify health risks and to act in accordance with the required measures, section 12(1) sentence 2 German Occupational Health and Safety Act requires that such instruction must be specifically designed for the workplace situation of each individual employee and encompass information, explanations and instructions. If the situation changes in terms of danger, additional instruction is required. The more severe the potential damage to the employee, the more stringent the protective measures to be taken by the employer must be. Employer liability is therefore first excluded by complying with occupational health and safety regulations which in particular includes providing correct information.
  
  
• Even mistakes in this area do not automatically result in employer liability. This is the case particularly if the ‘liability privilege’ under section 104(1) sentence 1 Book 7, German Social Code (SGB VII) applies. According to that ‘privilege’, the employer’s liability is excluded if the employer did not intentionally bring about an accident at work which involved personal injury.
  
  o Infection with the Sars-CoV-2 virus at work may count as an accident at work (Arbeitsunfall) for the purposes of section 8 Book 7, German Social Code (SGB VII), i.e. an insured event for the purposes of section 104(1) sentence 1 Book 7, German Social Code. The German Federal Labour Court (Bundesarbeitsgericht) assumed this in the case of a teacher at a vocational school who got infected with the hepatitis C virus through students (see Federal Labour Court, judgment of 14 December 2006 – 8 AZR 628/05). The same has already been found to apply to hepatitis C virus infections of medical staff during patient treatment (see Higher Labour Court of Rhineland-Palatinate (Landesarbeitsgericht), judgment of 8 January 2009 - 2 Sa 481/08). The fact that this is a pandemic does not necessarily require a different assessment (but see also the opinion of the German Statutory Accident Insurance (DGUV) below).
  
  o A Sars-CoV-2 virus infection and the resulting damage to the employee infected are typically not intended by the employer in terms of deliberate intent. According to the established case law of the German Federal Labour Court and the German Federal Court of Justice (Bundesgerichtshof), for the liability privilege under section 104 Book 7, German Social Code not to apply, the employer’s intent must relate to both the act (breach of duty) and the damage incurred (damage to health) (see Federal Court of Justice, judgment of 11 February 2003-VI ZR 34/02). The liability privilege under sections104 et seq. Book 7, German Social Code therefore not already ceases to apply to the employer if the intent of the injuring party (employer/colleagues) relates to the conduct giving rise to such liability (i.e. insufficient information, breaches of hygiene requirements, etc.). It is also required that the employer at least willingly accepted the possibility of damage to the employee’s health. Even gross negligence is not sufficient.
  
  o Where it is apparent that an employer makes a targeted and serious effort to prevent Sars-CoV-2 virus infections and any damage to the health of its employees resulting from such an infection, there are strong arguments that the ‘liability privilege’ of section 104 Book 7, German Social Code applies. Instead of a claim against the employer, the employee suffering the damage has a claim against the statutory accident insurance scheme.
  
  o On the other hand, the umbrella association of industrial employer’s liability insurance associations and accident insurance companies, DGUV, like some accident insurers, takes the view that liability of the statutory accident insurance for an infection with SARS-CoV-2 is excluded. They argue that since this is a pandemic, the infection is considered to be a general hazard for which accident insurance is not liable. However, it does not seem that liability is to be excluded quite so easily. Ultimately, the decisive issue is whether a business-related risk materialises. For example, if the concerned risk is in fact business-related, insurance cover is indisputably also in place for the hazards of everyday life (e.g. slipping on smooth floors). Only general hazards (e.g. natural disasters) which only coincide with the insured activity are excluded. However, it will not be possible to assume such a ‘coincidence’ if it is only the activity in the business that brings about the contact with an infected person. For example, the current pandemic is not comparable to a natural disaster within the scope of section 104, Book 7 German Social Code, which the individual cannot avoid. This is shown precisely by the uniform level of Covid-19 occupational safety, which after all sets behavioural guidelines to prevent infection. But, obviously, not only a corresponding dispute with the accident insurance association  is a burden on the employer. If DGUV’s view were to be confirmed by court, the employer would be liable for SARS-CoV-2 infections caused negligently by it in the company. Therefore, in order to minimise this risk, occupational safety compliance should be strictly maintained 

More flexibility in working hours arrangements – possible instruments 

Working hours should also be adjusted to meet operational needs. Flexible working time arrangements may make getting the business going again in a structured way significantly easier. It is important to bear in mind in this context that there might be another lockdown if infection rates rise again. A policy should be developed specifically for the company and its business which may include the following components, among other things:

• Introduction of working time accounts (e.g. flexitime accounts)
• Adjustment of existing working time accounts (e.g. extension of negative hours range, introduction of adjusted forfeiture periods, redesign of the overtime reduction provisions (employer’s discretion depending on the work required instead of employee’s discretion))
• Part-time arrangements
• Work on call (section 12 German Part-Time and Limited Employment Act (Teilzeit- und Befristungsgesetz))
• Changes to shift schedules (e.g. for reasons of health protection to implement the measures developed in the course of risk assessment)

If, as in many businesses, short-time work was introduced to be able to draw short-time work compensation (Kurzarbeitergeld) which the company continues to rely on to a degree, employers must be careful to ensure when ramping up their operations again that both the operational requirements and the personal requirements with respect to the employees working reduced hours continue to be fulfilled.

Adjustment of the operational remuneration structure

The remuneration structure within the company should also be reviewed. The goal is to reduce claims for the payment of wages resulting from a default in the acceptance of services offered by employees and to prevent any future overtime (which may be subject to additional pay) in order to share the burden resulting from the pandemic fairly between the employer and the employees. This is also intended to prevent a need for any subsequent redundancies, if applicable. For these reasons, the following should be reviewed:

• Possible waivers (if applicable, with debtor warrant), or alternatively deferments
• Adjustment of bonus, profit-sharing and commission arrangements
• Employee share ownership programmes
• Vouchers for further training, etc. 

Conclusion

Ramping up operations again without an end to the pandemic involves complex challenges for businesses and employees. In addition to important occupational health and safety measures in accordance with the uniform Covid-19 occupational safety standards, different industry-specific infection control requirements from states, cities and municipalities, as well as quarantine rules and travel requirements, must be reconciled with business needs. Furthermore, any state aid which is still required in the future such as short-time work compensation or the like may not be thwarted. Liability risks have to be mitigated by compliance, with occupational health and safety regulations, or at least a visible and targeted effort to comply with them. In view of a possible deterioration in framework conditions, i.e. the risk of a new lockdown and the resulting infection prevention requirements, arrangements should be made to ensure the necessary flexibility. In addition, working time and remuneration provisions should be reviewed and adapted where necessary in order to achieve a fair sharing of the burden resulting from the pandemic, which will ultimately help secure the existence of the company and its jobs. It is therefore important to develop a structured package of measures when getting operations up and running again that contains sufficiently flexible building blocks to be able to respond quickly to any new developments.