Coronavirus and labour law - What employees and employers need to be aware of

Currently, the coronavirus (SARS-CoV-2) is keeping people, authorities and companies busy. We would like to briefly present to you what employees and employers must pay attention to in the context of the employment relationship:

How do employees behave properly?

Employees may only be absent from their workplace in the event of an personal danger to health and life. A vague suspicion or an increased feeling of fear is not sufficient.

- Employees have no right to to work at home unless this is permitted by contract or by order of the employer. by the employer.

- In the case of absence due to illness If a large number of employees are absent due to illness, the employer may order them to work overtime. employees are obliged to work overtime because of their duty of loyalty. Under the employer may also temporarily assign the employees to other work. activity on a temporary basis.

- In the event of a company closure reasons, the employer must in principle continue to pay remuneration. pay. Alternatively, employees can reduce overtime or take leave. take leave. However, the employer cannot order this without further ado.

- When kindergartens and/or schools are closed schools are closed, employees often have to stay at home to look after the children. This does not apply when other options such as leave, overtime or or home office are available and then only for a "non-substantial period of time" within the meaning of sec. time" within the meaning of section 616 BGB.

- Employees may only travel with service to areas with a risk of infection (risk area) only if there are refuse to travel to areas with a risk of infection (risk area) only if travel warnings have been issued by the Foreign Office, a corresponding recommendation recommendation of the WHO or the Robert Koch Institute.

- Employees should think carefully before consider whether they are going on holiday to a place designated as a risk area. If employees become infected with the coronavirus during such a holiday, they may risk losing their sick pay. According to § 3 para. 1 p. 1 of the Continuation of Remuneration Act (Entgeltfortzahlungsgesetz), the entitlement to continued remuneration that the employee is ill through no fault of his or her own. Fault means in this context means intentional or grossly negligent action. If, for for example, the Foreign Office has issued a travel warning for a risk area due to the and one becomes infected with the coronavirus there, the threshold for gross negligence could be crossed. The The entitlement to continued payment of remuneration would then not exist.

What is the right way for employers to behave?

- For all measures that place a burden on employees, keep calm and, if possible, find a joint solution that is find a common solution that is reasonable for all concerned.

- The employer should consult with the works council early on, if such a council has been formed in the company.

- Employers should give those returning from risk areas as a precautionary measure. Employers can also ask returnees to provide informal employers can also ask returnees to provide informal medical confirmation that they are not suffering from an infectious disease.

- When employers need the labour of a potentially potentially infected employee, they should offer the employee to work from home (if possible). offer the employee the opportunity to work from home (if possible).

- Employees who are sent into quarantine by an quarantine, employers must pay their salary for a maximum of six weeks. salary for a maximum of six weeks. If the requirements of §§ 56ff. IfSG are met, employers are reimbursed employers are reimbursed for the expenses.

- Employees who are proven to be infected Employers can and should give them time off.

- The employer is not allowed to prohibit an employee from spending his from spending their holiday in a risk area.  

- Employers are allowed to ask demonstrably infected employees whether he or she has been in a risk area. has been in a risk area. The question of whether an employee intends to go on holiday in a risk area is on holiday in a risk area is probably inadmissible.

There is a lot of uncertainty at the moment. Especially in the context of employment relationships, employees and employers are uncertain. We are therefore currently advising many of our clients in this area in order to provide clarity. We are therefore happy to answer any questions you may have.

GoldbergUllrich Lawyers 2020

Julius Oberste-Dommes LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law