The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic. In response, the German authorities ordered far-reaching protective measures to slow the spread of COVID-19. Schools and kindergartens were closed throughout Germany, but have been reopened to a varying extent in each state since 4 May 2020. Whilst most of the larger stores remain closed, shops with a sales area of up to 800m2, hairdressers, car dealers and, bookstores are allowed to reopen to the public, in addition to restaurants and public cultural and entertainment institutions such as theatres, museums, cinemas, zoos, swimming pools and playgrounds. Contact restrictions have also been relaxed. However, large assemblies of over 20 people remain prohibited, as well as major events such as public festivals until at least end of August 2020.
Below we answer some key questions of employers to clarify legal obligations and support you in protecting business and people.
What are employers' obligations in respect of COVID-19?
German authorities are still recommending that employees work from home where possible. If employees remain at or return to their place of work, the following additional occupational safety standards must be observed (SARS-CoV-2-Arbeitsschutzstandard):
- A distance of 1.5 metres between customers and colleagues must be maintained at the workplace, including when outdoors and in vehicles. This should be implemented with appropriate barriers and markings. Where separation by barriers is not possible, the employer must provide face masks to employees, customers and service providers.
- Tools and equipment should be used on a personal basis wherever possible.
- Employers should implement individual protection measures for employees in risk groups. Employers should also develop operational routines in preparation for afuture pandemics (e.g. a company pandemic plan).
- Processes in the company should be organised in such a way that the employees have as little direct contact with each other as possible. Shift changes and breaks should be organised accordingly.
- Employers must provide additional hygiene precautions such as disinfectant dispensers.
- Employees with COVID-19 symptoms must be requested to immediately leave work or stay at home. The employer should have provisions to identify and inform those persons (employees and, where possible, customers) who are at risk of infection through contact with infected persons.
In general, employers should ensure that they are taking any necessary steps to protect their employees. All employers have a general duty of care towards their employees and should keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out risk assessments on an ongoing basis and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on action employees can take to help stop viruses like COVID-19 spreading. Such advice may include:
• Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
• Put used tissues in the bin immediately
• Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
• Try to avoid close contact with people who are unwell
We further recommend notifying employees where they can access more information if they have concerns.
We do however, note that the extent of the obligations above depends on the circumstances of the business, and not every employer will have to take extreme measures such as shutting offices completely. Nevertheless, if an employer does not fully satisfy its duty of care to the employee, they may be liable for damages.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer is primarily a data privacy issue. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and the position is complex from a European data privacy perspective. There is a significant difference in how sensitive personal data can be processed in different countries, so the appropriate legal basis will change country to country. We set out below the position in Germany, but also have available to you our cross-jurisdictional Q&A on important HR data related questions available here. The chart includes guidance on steps employer can or must take when re-opening the workplace (including temperature checks) in respect of employees, visitors and agency workers.
In Germany, employers may review an employee's data, subject to express consent. If the employee does not consent to an assessment, then it will only be allowed if required for the administration of the employment and in the interest of avoiding further infection and health and safety of colleagues and relationship or if it would protect a legitimate business interest. So far there is no precedent in German law but it is the prevailing opinion that employees also have certain loyalty obligations towards the employer customers prevail over the individual’s interest to protect its personal data so that in such cases, even without express consent, employees are obligated to provide information to avoid further infection.
Employers may ask their employees about their symptoms and/or their health status, as far as is relevant in connection with COVID-19 (or other similarly serious infections).
The issue of whether an employer may ask its employees about their travel history is a rapidly evolving area. Previous guidance from data protection authorities stated that it was not possible for employers to request general travel history, but noted that employers could ask for travel history regarding the "risk areas", as defined by the relevant body (i.e. the Robert Koch Institute in Germany). However, rapid development of the spread of COVID-19 has shown that this approach may be too short-sighted, as. the risk areas change rapidly and whether an area is considered risky at a certain time may only be determined one or two weeks later. We also note that there are general international travel restrictions in place. In this context, we think there is an argument at the moment that employers should be allowed, and that it is even appropriate to collect all relevant travel history from employees (subject to strict access restrictions and further technical and organisational measures) – this may change if the spread of the virus further progresses throughout the whole world and locations become less relevant.
What are employers' obligations where employees are absent or infected?
Employees with COVID-19 symptoms must be requested to immediately leave work or stay at home.
In case of an existing infection or a suspicion of an infection the employer should consider early involvement and close coordination with the responsible health authorities. If an employee is infected with COVID-19, the responsible health authorities should be notified in order to seek guidance to best protect the health of the workforce. The authorities can then impose professional bans on activities and quarantines to prevent the virus from spreading. There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. Nevertheless, works councils have a general right to information on health and safety issues, so it is advisable to generally to inform and involve the works council in any measures, also with a view to potential co-determination requirements in relation to changes to the working time, etc.. When doing so to anyone other than the authorities, employers must be very careful to balance the privacy of the individual with the public interest in avoiding the spread of the virus.
If an employee is infected, they will be entitled to continued payment of remuneration (paid by the employer for up to six weeks) as per the statutory rules on compensation in case of sickness.
If an employee is quarantined by the authorities under the German Infection Protection Act, they will be entitled to public compensation for up to 6 weeks for lost earnings and statutory sick pay for any further period. Within the first six weeks, this compensation needs to be paid out by the employer who can claim reimbursement.
In addition to the priority of health protection, the employer should develop a concept as to whether and how operational processes can be maintained.
Potentially Infected Employees
Where an employee has come into contact with an infected colleague, they should be asked to undergo a medical examination, and until the results are available, should be released from work or work from home. As a matter of course, confidentiality has to be observed as far as possible.
In general, if there is a reason to believe that an employee poses a risk to the health of other employees, for example because they have been in a risk area, the employer may unilaterally exempt the worker and deny them access to the premises. However, the employee retains their right to remuneration during this exemption period.
If there are too many absentees, employers can order the employees who are in the workplace to work temporary overtime. Employers, in coordination with the relevant works council, can also demand short-time work if they cannot sustain the business due to absences. In the case of short-time work, employers can apply for public short-time work subsidies (please see our article for more information here).
Refusals to work or travel
Further, employers should consider their approach to dealing with employees who want to stay at home to avoid being infected. The Employees are under the obligation to perform work. They may not be absent from work on their own initiative due to their fear or abstract risk of an infection. Due to the immigration restrictions and travel warning from the Foreign Office business trips should be avoided. For further information, please see here.
What are employers' obligations where offices are partially or fully closed?
If a business is closed in Germany due to an official ban, the employees are entitled to compensation (for up to 6 weeks for lost earnings and statutory sick pay for any further period). The initial 6 weeks of payment will be paid out by the employer, who can claim reimbursement from the authorities, and the following period will be paid solely by the authorities.
If a business is closed in Germany by way of precaution but without an official ban, employees will remain entitled to their compensation even if they cannot perform their work due to the temporary closure. Employers may be eligible to apply for short-time work subsidies in such circumstances (please see here for further information).
Alternatively, working from home can be agreed between the employer and employee so long as the employee is adequately compensated.
Where can employers and employees access local and national advice?
German Ministry for Health (Bundesgesundheitsministerium)
German Employment Agency (Arbeitsagentur) on options for short-time work (Kurzarbeit)
WHO homepage on COVID-19
COVID-19 situation in the WHO European Region WHO map
Last reviewed: 24 June 2020