No recourse to labor courts in case of compensation under the German Infection Protection Act

Employees may demand compensation from their employer in the amount of the loss of earnings in the event of compulsory separation due to COVID-19 in accordance with Sec. 56 German Infection Protection Act (IfSG). Within this context, the employer acts as the payment agent for the state. Administrative proceedings are available for this purpose under Sec. 68 para. 1 German Infection Protection Act (IfSG). This also applies if the employee makes a direct claim against the employer under Sec. 56 para. 5 sentence 1 German Infection Protection Act (IfSG).

Baden-Württemberg Regional Labor Court, judgment dated December 21, 2022 - docket number 19 Ta 13/22, appeal filed under docket number 9 AZB 2/23

Claim for compensation following COVID-19 infection

An employee failed to show up for work for a total of 16 days following a COVID-19 infection due to the existing obligation to separate. He claimed compensation from his employer in the amount of the loss of earnings suffered. After the employer refused to pay, the employee filed an action with the labor court.

Regional Labor Court: Jurisdiction of the administrative courts even if the employer is sued

The labor court rejected recourse to the labor courts and referred the dispute to the administrative court. The employee filed an immediate appeal against this with the Regional Labor Court. The latter followed the Labor Court and dismissed the appeal. The local administrative court had jurisdiction over the matter. The facts presented and the claim for compensation under the German Infection Protection Act (IfSG) are characterized by legal principles of public law.

The employer as paying agent

The employer must pay the compensation to the employee in accordance with Sec. 56 para 5 sentence 1 German Infection Protection Act (IfSG). In doing so, the employer acts only as a paying agent "for the competent authority", which is the actual debtor of the compensation. Therefore, the employer does not have to pay the compensation out of its own pocket, but in turn has a claim for reimbursement against the state.

Express opening of legal proceedings to the administrative courts

The Regional Labor Court clarifies that this is a dispute of a public law nature. The claim for compensation under Sec. 56 para. 1 German Infection Protection Act (IfSG) refers to regulations and prohibitions under Secs. 30 et seq. German Infection Protection Act (IfSG) and is thus characterized by legal principles of public law. In addition, Sec. 68 para. 1 sentence 1 German Infection Protection Act (IfSG) opens administrative legal recourse for this purpose. According to the Regional Labor Court, this is the intended consequence of the statutory allocation and the public law nature of the claim.

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