Employment situation in Germany concerning SARS-CoV-2/ COVID-19

By Dr. Barbara Geck, Daniela Gudat

03-2020

The German authorities have ordered far-reaching protective measures to slow the spread of COVID-19. Schools and kindergartens are closed throughout Germany until at least mid-April. Public cultural and entertainment institutions such as theatres, museums, cinemas, bars, discotheques, trade fairs, zoos, swimming pools and playgrounds are also closed to the public. The German authorities are strongly recommending that employees work from home if possible.

Employers rights and obligations
  • Employers have a duty of care towards their employees. Therefore, they should inform their employees about existing health risks and appropriate measures and rules of conduct for prevention.

  • The employer may unilaterally release an employee from his duties or deny him access to the premises, if there is reason to believe that he poses a risk to the health of other employees (e.g. because he has been in a risk area). In the case of unilateral exemption, however, the employee retains his right to remuneration.

  • The employer may even close his business temporarily if this is required or reasonable considering the existing health risks.

  • The employer may demand short-time work if he cannot uphold business due to absences of most of his employees or bottlenecks at important suppliers in coordination with the works council. The access to short-time work compensation was simplified by law with retroactive effect from March 1. Employers may now receive short-time work compensation if at least 10 percent of the employees could be affected by the loss of work due to COVID-19.

  • In case of an existing infection or a suspicion of an infection the employer should consider the following measures:
    • Early involvement and close coordination with the responsible health authorities.

    • All employees who have (potentially) come into contact with the infected colleague should be asked to undergo a medical examination. Until the examination results are available, employees should be released from work or work from the home office. As a matter of course the confidentiality has to be observed as far as possible.

    • In addition to the priority of health protection, the employer should develop a concept as to whether and how operational processes can be maintained.

  • Where a works council exists, the works council should be informed as part of the works council general right to information and obligation in relation to health and safety.
Employees rights and obligations
  • The Employees are under the obligation to perform work. They may not be absent from work on their own initiate due to their fear or abstract risk of an infection. A refusal may be treated as disciplinary matter. (https://www.auswaertiges-amt.de/de/ReiseUndSicherheit/10.2.8Reisewarnungen)

  • Employees who have to take care of their children due to the closure of schools and kindergartens may stay temporarily off work provided no one else can take over the care. The Federal Ministry of Labour and Social Affairs expressly advises against having grandparents take over the care, as older people are at considerable risk from the virus and their health should be particularly protected.

  • Employees are entitled to continued remuneration for three to five days provided they have no other options. The Federal Ministry of Labour and Social Affairs expressly asks employers to be accommodating in this respect and to find amicable solutions. This should apply in particular during the first week of the closure.

  • The Employer may not forbid an employee to travel for private purposes. However, the German government has issued a worldwide travel warning for tourist travel.

  • In case an employer asks to stay at home as matter of precautionary the employee has to work from home to the extent possible.

  • Employees are in principle required to work overtime in case a large number of employees should be absent due to illness or release from duties.

  • In general, an employee does not have to inform his employer about his diagnosis of an illness. However, also an employee has a duty care towards his employer. Therefore, he has to inform his employer in case of an infection or suspected infection with COVID-19.
Compensation in case of quarantine or infection
  • In the event of incapacity to work due to illness such as an infection with COVID-19, the entitlement to continued remuneration exists for a period of up to six weeks - subject to more favourable provisions under individual or collective law as per the standard employment rules. Thereafter he receives sick pay from the health insurance.

  • In case of a (precautionary) quarantine of an individual person, announced by the authorities under the German Infection Protection Act, the individuals are entitled to compensation (for up to six weeks in the amount of the lost earnings and afterwards in the amount of statutory sick pay). The initial six weeks of this compensation will be paid out by the employer, who can claim reimbursement from the authority, after the six weeks compensation will be paid directly by the authority.

  • The attending physician must submit a report to the responsible health authority in case of an infection or suspected infection with COVID-19. The latter may impose professional bans on activities and quarantines to prevent the virus from spreading.

  • In the case of precautionary exemption of an employee, the employee retains his right to remuneration. Further, the employer may not set off the employee’s entitlement to paid leave.
    The employer bears the operational risk in this respect. If he cannot offer the healthy employees any work, he remains obliged to pay the remuneration (§ 615 S. 3 German Civil Code) or may introduce short-time work.
More Information
  • Official numbers of the confirmed infections by region are published by the Robert Koch Institute https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Fallzahlen.html.

  • The Robert Koch Institute is the leading institute in Germany for infectious diseases, such as Corona, with the task of developing concepts for the prevention of communicable diseases and for early detection and prevention of the further spread of infections.

  • Due to the dynamics of the pandemic and the strong increase in case numbers, the Robert Koch Institute now asses the risk for the German population posed by COVID-19 as high. The risk varies from region to region and can also be very high in certain areas.

  • Risk areas are defined and published by the Robert Koch Institute https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Risikogebiete.html.

  • The worldwide spread of COVID-19 was declared a pandemic by the WHO on 11 March 2020.

  • The German government has issued a worldwide travel warning for tourist travel.

  • The European Commission plans to impose a 30-day entry ban on non-EU countries, similar to the one already imposed by the US. UK is supposed to be exempted from this. Border controls were reintroduced at the borders with Austria, Switzerland, Denmark, France and Luxembourg. No one may enter Germany without good reason. However, professional reasons constitute a good reason, so commuters may still enter Germany.