The coronavirus reaches the German labour market
1. Status Quo
On 31 December 2019, the WHO Country Office in China was informed about an increased incidence of pneumonia in the Wuhan region. A novel coronavirus (SARS-CoV-2/Covid-19) was identified as the pathogen. Due to global travel activities and subsequent infection chains, infections with the coronavirus are now also increasingly occurring in Germany. Even though the number of infections is still manageable at present, ‘German economy is already infected’ (Spiegel-Online 26 February 2020). This has a concrete impact on employment relationships.
2. Impact on employment relationships
2.1 Employers’ obligations
Employers have a duties of care (Fürsorgepflichten), which, depending on the situation, obliges them to take specific actions to protect their employees, including:
- Duty to provide information on the risks of infection and disease and typical disease symptoms. Information can be provided by means of respective announcements in the business premises, on the intranet, at works meetings or similar. The information on occupational safety measures provided by the Federal Institute for Occupational Safety and Health (Bundesanstalt für Arbeitsschutz und Arbeitsmedizin) may serve as the basis for this and can be accessed here: https://www.baua.de/DE/Angebote/Aktuelles/Meldungen/2020/2020-02-19-Coronavirus.html.
- Hygiene precautions, for example, through appropriate hygiene recommendations in sanitary facilities or providing disinfectants. In sensitive areas (e.g. healthcare), there may be more extensive protection obligations (e.g. provision of respirators or special protective clothing).
- Request for notification of any possible trips to risk areas. A blanket request to employees to inform the employer about private travel in general may not be permissible under data protection law.
- Protective measures if concrete cases of infection occur at the company, for example, releasing infected employees from work and notifying health authorities.
2.2 Absence from work and payment of wages/salaries
If the employee is unable to work due to an infection with the coronavirus, the general regulations for continued remuneration in the event of illness apply (section 3 German Continued Remuneration Act, EFZG). It is also possible that individual employees may be unable to work due to infection-related preventive measures. The authorities can, for example order quarantine (section 30 German Protection Against Infections Act, IFSG) or issue a professional ban on work (section 31 German Protection Against Infections Act). According to case law, such measures constitute a temporary personal reason for prevention, which according to section 616 German Civil Code obliges the employer to continue to pay wages/salaries (up to a maximum of six weeks) (see also section 49 German Federal Epidemics Act, BSeuchG old version, BGH (German Federal Court of Justice), judgment of 30 November 1978, III ZR 43/77). If there is no entitlement to continued payment of wages/salaries, the law grants the person concerned compensation that essentially corresponds to the loss of earnings in the first six weeks (net pay). The employer must then at most pay the compensation ‘as payment agent’ ("Zahlstelle") for this period and can have the compensation refunded by the competent authority upon application (section 56(5) German Protection Against Infections Act).
2.3 No right to refuse to work or to work from home
Applicable labour law remains in force despite the (abstract) risk of infection, i.e.:
- The employee generally does not have any right to refuse to work and is not entitled to stay away from work because of an (abstract) risk of infection.
- Subject to any regulations to the contrary, employees do not have any right to work from home. If employees nevertheless remain away from work on a ‘self-imposed’ basis or work from home contrary to instructions, the usual sanctions under employment law apply, in particular formal warning and, if necessary, termination of employment.
- Business trips and secondments are generally to be undertaken. The only exception is if travel warnings have been issued by the German Foreign Office, the Robert Koch Institute or the WHO for the region concerned. In these cases, and possibly in the case of special individual circumstances (e.g. pre-existing conditions), the employee may refuse to undertake business travel.
3. Response options of companiesIn view of the far-reaching organisational and financial implications, companies are well advised to start proactively addressing the potential impact of the coronavirus on employment relationships now. In particular, the following measures can be considered:
- Reduction of overtime quotas or use of flexitime accounts. If flexitime accounts (Arbeitszeitenkonten) exist, the agreed quotas can be used to reduce plus hours and increase minus hours in order to minimise the employer’s risk of being in default of accepting the work services offered by its employees (Annahmeverzugsrisiken).
- Alternatively, ordering company holidays is conceivable. If there is a works council, co-determination rights in this respect to be considered. Employers are therefore well advised to conclude a works agreement on company holidays in advance.
- Ordering of short-time work (Kurzarbeit). Ordering short-time work is a suitable response for minimising the employer’s risk of being in default of accepting the work services offered by its employees. The German Federal Employment Agency (Bundesagentur für Arbeit) has also clarified that short-time work can be subsidised by means of short-time compensation due to absences from work caused by the coronavirus; https://www.arbeitsagentur.de/news/kurzarbeit-wegen-corona-virus. However, the employer can only order short-time work if employment contracts, collective agreements or, if permissible, works agreements provide for this accordingly. If a works council is in place, it has co-determination rights with regard to the ordering of short-time work.
- Drafting of company policies for home office-work or expansion of options for replacing personal meetings with video and telephone conferences. A works agreement or internal agreement must be concluded with any existing works council. Negotiations on this should be started in good time to facilitate a rapid response if infections or suspected cases arise.
- Drafting an emergency plan. This should be drawn up at short notice with the involvement of all company stakeholders (in particular the works council, departments responsible for occupational safety and data protection or the company doctor). In particular, specific rules of conduct should be laid down for the event of an acute pandemic (e.g. dealing with infected employees, informing the authorities, etc.). In addition, the company should take into account which tasks/functions are essential for operations and how these can be maintained for ‘minimum operations’ if a large part of the workforce or operations fail (e.g. by ordering overtime, relocations, home office-work, etc.).
- Waiver or adjustment of statutory risk distribution regarding continued payment of wages/salaries. The rules of the operational risk theory (section 615 German Civil Code) and those regarding temporary inability to work (section 616 German Civil Code) are discretionary. They can be temporarily waived, also for existing employment contracts, if this has not already occurred, by means of respective works agreements with the works council, using, for example, the principles developed by case law on amending employment contract provisions with a collective reference by works agreements. This is also conceivable as part of (reorganisation) collective agreements. It is possible that a (fixed-term) guarantee of employment protection will be demanded as ‘consideration’.
Any questions? Please contact: Andreas Butz, Wolfgang Schelling or Stefan Schwab
Practice group: Employment & Pensions