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No Pay after a Holiday in a High-Risk Country

In August 2020, in the middle of the summer holidays and the main tourist season, the authorities further expanded the international list of high-risk countries for the COVID-19 pandemic. What does this mean from an employment law perspective? Does the employee have to be quarantined after their return and who covers the costs? Is there a difference between necessary business trips and a private holiday? What options do employers have before the trip?

Exceptionally, questions about the destination are allowed

Normally, an employer cannot ask employees about their holiday plans. During the corona pandemic, however, this rule does not apply. Employers have a duty of care with respect to the health of colleagues and customers. Given the current circumstances, this obligation outweighs the employee’s personal rights. The employer may also have to take organisational measures while an employee is in quarantine, for example, in order to maintain operations and might have to assign the employee’s responsibilities and tasks to others. This also means that the employer may ask the employee where they are planning to go even before the employee starts their holidays (where appropriate, employers may also mention what consequences this might have on the employee’s rights to pay). The employee must tell the employer truthfully where he or she is planning to go. However, the employer cannot prohibit the trip.

No paid leave for quarantine after the return from a high-risk area

Those travelling to high-risk areas must undergo a corona test at their destination or at the latest upon their return to Germany. Until a negative test result is obtained – based on state regulations on quarantine measures - travellers will have to go into quarantine at home for 14 days. If an employee is not able to work during this period of quarantine, such as because the type of work that they do cannot be done from a home office, the returning employee will not generally receive any pay from their employer for the period of quarantine where the trip was a private holiday. To this extent, the principle of “no pay without work” applies. The rule on the temporary prevention from performing services in § 616 German Civil Code (Bürgerliches Gesetzbuch, BGB) or claims for damages under § 56 Infection Protection Law (Infektionsschutzgesetz, IfSG) may provide exemptions. The employment contract, for example, may not rule out the application of § 616 BGB if it is to provide relief. In addition, the employee may not have culpably caused the absence from work. The rules of the Act to Promote Transparency in Wage Structures (Entgeltfortzahlungsgesetz, EFZG) provide the benchmark here.

Self-inflicted

As a result: There will be no right to claim remuneration under § 616 BGB if it is known before the holiday starts, that the intended holiday destination has been classified as a high-risk area by the Robert-Koch-Institut (RKI). The same applies under the IfSG; § 56 focuses on whether the employee deliberately caused the quarantine situation or could have avoided it. Even under the EFZG, the employee loses the right to claim continued pay after returning to Germany if the employee contracts the coronavirus while on holiday. Holidaying in a known high-risk area is considered “self-inflicted”.

However, this will not be the case where the RKI only classifies the travel destination as a high-risk area while the employee is on holiday. Where §616 BGB applies, the employee will still have a claim to pay if they have a negative corona test result within a few days. To what extent compensation might be available from the state under § 56 IfSG in such cases has not yet been clarified.

If an employee finds themselves in such a situation, the EFZG will apply and the employee will generally have a claim to continued pay.

There is one special feature in the case of travel restrictions: if employees are stuck in a foreign country and are therefore unable to return to work on time, their claim to pay will also be void. It does not depend on fault. In principle, the employee bears the “route risk”.

Urgent business trip to another country

Special rules apply before the trip and after the return in the case of a business trip to a high-risk area. It is recommended that you inform yourself about the current situation in the destination country on the website of the German Foreign Office. Even before the start of the trip, the employer will have an increased duty of care when weighing up the necessity of the trip and the risk to the health of the employee. If the business trip is absolutely necessary, the employer must impose special safeguard measures, e.g. issuing instructions on hygiene and security rules; providing disinfectant, gloves and a faceguard.

After the employee returns from the high-risk area and is faced with 14 days of quarantine at home – in contrast to an employee who was only on holiday - the employee will have a right to the continued payment of wages if the employee is unable to perform his work from a home office. In this case, the employee will bear no fault, either under § 616 BGB or § 56 IfSG.

Take action to avoid a quarantine period without pay

Where the employee must go into quarantine at home after returning from a holiday in a high-risk area, the employer and employee should make arrangements for flexible working practices for this time, such as working from home or mobile networking. Employees should take any necessary technical equipment home with them on the last day before they start their holidays so that they can work from home after they return from their holiday, if necessary. The employer should also let the employee know before their trip that they will have no right to claim pay for a trip to a high-risk area with subsequent quarantine. This is particularly important where the employee is not able to perform their duties from a home office.

Employers should also expressly inform employees that they are forbidden from returning to their place of work without a negative COVID test. Employees should only return to work when they have also had a second test 7 to 10 days later that also yields a negative result and the employer has been informed of these test results – or the quarantine period has expired. The employer generally will have no obligations concerning the carrying out of COVID tests.

Involve the works council

If there is a works council, it should be involved in the development of the “Return from travel rules”. The works council has codetermination rights with respect to the risk assessment (§ 87 (1) No. 7 Works Constitution Law (Betriebsverfassungsgesetz, BetrVG)) and any arrangements for work and safety measures (§ 87 (1) No. 7 BetrVG). The parties can agree on various general rules in works agreements, such as on mobile working, the return-to-work concept and other protective measures. The specific circumstances within the work will determine which measures the employer can implement or order at short notice without the involvement of the works council. Particularly in the case of systematically important works, the employer should be able to make at least temporary unilateral orders for the protection of health even without the involvement of the works council. It is recognised, for example, that an employer can order health screenings based on their instruction rights under § 106 Industrial Code (GewO) (Judgment of the Federal Labour Court of 12 August 1999 – 2 AZR 55/99). Still, the employer should actively reach out to the works council and agree on the hygiene concept in the form of a works agreement.

Dr Michaela Felisiak

Dr Dominik Sorber

Please note: A similar article appeared in LTO on 17 August 2020.



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Arbeitsrecht Quarantäne Risikogebiet