The Coronavirus and Business Travel - Employees with a Temperature make Employers Work up a Sweat

The coronavirus continues to spread within and beyond China despite drastic measures such as quarantines for whole cities, obligations to wear face masks, closures of airports and parts of public transport, cancellation of flights, temporary closures of businesses etc. However, rumours and half-truths around the disease are spreading even more rapidly than the virus itself, also regarding labour law issues. A question which comes up again and again is whether employers may send employees on business trips to China, or even to Wuhan, the epicentre of the outbreak, by virtue of their right to give instructions. My answer to this question is: "Yes, sure." This may seem outrageous but let me explain, dear readers.

As always, it strongly depends on the particular case. Let me illustrate the point I would like to make with a vivid example: Can an employer force an employee to enter a building which is on fire? Of course the employer can: if the employer is a fire department and the employee is a firefighter. Of course the employer cannot do this if the employee's job has nothing to do with "buildings on fire", for example if the employee works as a baker, butcher, teacher, shop assistant, painter etc. Based on the example of the coronavirus, I will give an insight into the rights and obligations of employers as well as employees under the employer's right to give instructions.

Definition of the Term "Business Travel"

Business travel is not defined in labour legislation. From a labour-law point of view, business travel can be described as employees performing their work duties at a place outside of their assigned place of work. It does not matter in this respect whether the employees travel within their country or abroad, which mode of transport they choose for their trip (plane, train, car, bicycle) or whether an overnight stay is required. The term business travel covers a five-day trip from Frankfurt to the US by plane as much as a two-hour meeting 20 km away from the usual place of work reached by employees in their own car.

Obligation to Take a Business Trip

Generally speaking, an employee may be obliged to go on business trips if (occasional) travel is agreed upon in the employment agreement or if travel is typically associated with the specific profession. Employers may unilaterally order an employee to take a certain business trip by virtue of their right to give instructions. Under this right, the employer is entitled to specify the employee's work duties in regard to time, place, scope and type of the activities to be carried out.

The Employee's Right of Refusal

The right to give instructions under Sec. 106 German Trade Act (GewO) has its limitations. For example, employment contracts, works agreements or collective agreements might include certain restrictions concerning business travel. Instructions by employers also must not be illegal or improper; an employer cannot instruct an employee to drive a vehicle under the influence of alcohol or without a driving licence. Another limitation is "reasonably exercised discretion". This means a balance has to be struck between the interests of the employee, on the one hand, and the operational interests and/or the employer's interests, on the other hand. When it comes to the interests of the employer, the following factors have to be considered regarding business travel: the urgency of a business trip, the significance of it, the possibility to have a phone call or meetings at a different location instead, possibility of postponing the trip etc. When it comes to the employee, the following factors are to be considered, particularly with the employer's welfare duties in mind: employee's freedom from physical and medical harm, family reasons, duration of a business trip, hazardous situations during such business trip, etc.

If it becomes clear after taking into consideration the interests of both parties that the employee's interests outweigh the employer's interests, then the employee is entitled to refuse a business trip. In this case, the employee will not face any sanctions. If the employer's interests in a certain business trip outweigh the employee's interests, the employee has to follow the employer's instructions and go on the trip. Otherwise it would be deemed as a refusal to work on the part of the employee and the employer would be entitled to sanction these actions with a letter of reprimand or a notice of termination.

Employer's Welfare Duties

Welfare duties are collateral duties and therefore a mandatory part of an employment relationship. Employers are obliged under their welfare duties to only request work performance from their employees if the employees' interests are sufficiently considered in good faith, taking into account corporate and staff matters. The employer's welfare duties include the protection of the employee's life and body, of the employee's property and objects as well as the employee's personal and property rights.

In the case of business travel during times of the coronavirus, the employer's welfare duties, in particular concerning the employee's health or even life, are of primary importance. So in some cases, the necessity of every single business trip might have to be reviewed in terms of its appropriateness and by weighing up all interests. When it comes to business travel to China and/or other parts of Asia, it is not only the employee travelling that the employer has to consider but also all other employees. When an employee returns from a business trip and might be infected with the coronavirus, the employer is also obliged to protect the staff at the usual work location from a potential infection. That said, the following options may be considered:

• Complete ban of business travel to China and/or individual cities/regions
• Business trips to China only in exceptional cases and upon approval by the management board/management
• Possibility to self-quarantine by working from home after a business trip
• Closure of individual businesses/parts of businesses
• Alternatives to business trips, for example meetings at "neutral" locations
• Postponing business trips to a later point in time

So, it is possible for employers to send employees on a business trip to China, or even to the epicentre of the coronavirus in Wuhan, by virtue of their right to give instructions. This is possible, for example, if the employee works in the field of disaster control or medicine in Germany and is supposed to support Chinese hospitals or Chinese authorities in China.

All the best from the labour law team! Let us hope the coronavirus will spare us.

Dr. Erik Schmid