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Labour Law Immune System - Tips for Employers in the Time of Coronavirus

The coronavirus continues to spread and more and more companies are affected. To ensure that you are well prepared for the questions of your employees and that the company gets through the next weeks and months safely, the most important topics will be dealt with here. After all, information and the right communication are the best means against uncertainty among employees.

Can employees simply stay at home?

The most common question is whether the spread of the coronavirus will change anything in terms of the obligation to work. The answer is clear and unambiguous: No, it does not. The current risk situation does not change an employee's general obligation to work. Otherwise, offices would be empty every year because of the flu epidemic, even without Corona. The mere fear of a possible infection does not entitle the employee to not show up for work of his own accord. It also does not authorise him to decide on his own to work from home, if there are no regulations on this matter in the company. Only in extremely exceptional cases, e.g. if suspected cases occur in the company or proven infections exist, the employee may refuse to perform under certain circumstances. However, this is only the case if the employer does not take any protective measures in the event of an increased risk, which is unlikely to happen.

What does the employer have to do in the current Situation?

As long as there are no suspected cases in the company and no infections have been proven, the employer's general duty of care under labour law continues to apply. The employer must take appropriate measures to protect the health of the employees. Currently, the following measures may be considered:

  • Reminders to wash hands regularly,
  • Tips for washing your hands properly,
  • Distribution of disinfectants,
  • Prohibition on shaking Hands,
  • Recommendation to cough or sneeze into a disposable tissue or into your upper sleeve, as well as
  • If necessary, the wearing of breathing or face masks.

What needs to be observed in an emergency

If any suspected cases occur in the company, the employer must take further measures. In this case, affected employees and possibly also their colleagues should be given revocable leave of absence for a period of 14 days (in accordance with the recommendations given by the Robert Koch Institute). An infection may already be suspected if an employee returns from a risk area. However, as long as it is only a suspected case and the employee is not unfit for work, work can be carried out from home during the leave of absence. For the duration of the leave of absence, the employee is entitled to remuneration.

May I ask the employee about his or her holiday Location?

In order to be able to identify suspected cases more easily, the employer also has a justified interest in asking returning employees whether they had been in an affected area or in a place with an increased risk of infection.

Who is going to pay if an employee is ordered into quarantine?

If an employee is ordered into quarantine by an authority or if an official prohibition of work is imposed on him, the employer is generally entitled to reimbursement from the authority ordering the quarantine in accordance with the German Protection Against Infection Act (Infektionsschutzgesetz). However, case law argues that in such cases the employer is obliged to continue to pay the remuneration in accordance with section 616 of the German Civil Code (BGB) anyway, and that a claim for reimbursement is therefore excluded. In this case, the employer would have to pay the salary and would not be entitled to reimbursement.

Therefore, it depends on the individual case and, above all, the duration of the quarantine. It remains to be seen whether the legislator will provide companies with easy and smooth assistance in the short term. Based on the current legal situation, however, it is not to be expected that reimbursement claims will simply be granted. Since reimbursement claims are also subject to certain deadlines, employers should contact the authorities at an early stage and seek advice.

Are business trips still possible?

As of today, there is no legal reason to ban business trips or to cancel business trips that have already been booked, except if the Federal Foreign Office has issued a travel advisory notice for the destination. As long as this situation does not change and no travel advisory notices are issued, business trips can be ordered. Employees may not refuse to go on these business trips. Within Germany, business trips can be ordered.

Practical tip:

Irrespective of the legal situation, it is a question of weighing up whether it is actually necessary to make a business trip due to the general uncertainty. Postponing the trip, or holding the meeting by other means, for example electronically via Skype or web conference, can finally take some of the employees' worries away.

What happens if business operations collapse?

If the number of suspected cases or infections in the company increases and business operations can no longer be maintained, or if the authorities order closure of operations, the question of remuneration of the employees arises. Since the continuation of the business operations is part of the so-called operational risk of the employer, employees must continue to receive their remuneration, even in case of closure of business. In order to avoid economic damage, the ordering of short-time work should therefore also be considered in good time. Before doing so, the employer should also review whether it is possible to reduce overtime or grant vacation days for times of crisis.

What happens if the spread continues to increase?

If the number of cases continues to increase and the authorities, as recently in the Heinsberg district, close down entire cities or regions, further questions arise. If the place of work is located in an officially shut down area, this is equal to a de facto closure of the company. In this case, the operating risk lies with the employer and the employees' remuneration claims continue to exist unchanged. Conversely, if the employee is not himself quarantined due to an official order, but is not allowed to leave his home town, he cannot appear for work. This makes it impossible for him to perform his work. Here too, consideration should be given to working from home. If, however, a home office activity is out of the question, the employee may still be entitled to remuneration in accordance with section 616 BGB (so-called prevention without fault) in individual cases.

What else needs to be considered?

Employers should assess what measures are reasonable and necessary in their company. To avoid insecurities, employees should also be regularly informed about all measures. Since many measures could be subject to the co-determination of the works council, employers should ensure that a body with capacity to act is available as a partner. It may also be advisable to set up a corona panel.

Conclusion

All in all, it is advisable to keep a cool head in the current situation and to take prudent and transparent preparatory measures in the interest of the company and all employees. If several options for action are open, the current situation should be evaluated together with the employees and the solution that best suits the company should be found. In all this, corporate communication is of great importance, because uncertainty and panic are caused mainly by insufficient information.

Martin Biebl will be pleased to answer any further questions.

Experts

Martin_Biebl_Experte_BEITEN_BURKHARDT

Martin Biebl

Lawyer, Licensed Specialist for Labour Law

Partner

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Coronavirus COVID-19 SARS-CoV-2 Arbeitsrechtliche Fragen Quarantäne Q&A Tipps für Arbeitgeber

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