Coronavirus and German employment law

Employment law expert Sarah Klachin of Pinsent Masons, the law firm behind Out-Law, said: "There are no specific rules applying to Covid-19, yet. The employer's rights and obligations continue to be governed by the general provisions of labour law. Nevertheless, there are certain provisions that can be taken by employers to protect employees and to be able to react flexibly to the developing situation."

Home working

When virus-diseases are spreading, many employees would prefer to stay at home instead of risking infection in the office.  Although must still come to their place of work during the spreading of an infectious disease, home working is a sensible alternative that employers can offer their employees.

"Employees are generally obliged to fulfill their contractual duties, there is no general right to refuse performance," Klachin said. "To stay away from the place of work without permission is not an option. But in order to fulfill their duty of care, employers can offer their employees the chance to work from home. This is often done during the flu season. Flu is spreading in Germany just now too."

Travel

Many airlines, including Lufthansa, have restricted their air traffic in order to protect staff and passengers. Other employers are limiting business travel in general and especially to countries highly afflicted by Covid-19. But not all business travel can be delayed. Even during an epidemic, employees still are obliged to fulfil their duties.

"This can also include a duty to travel abroad. Of course, with respect to his duty of care, the employer should try to limit business travels to the minimum", Klachin said. Also, the employees' general state of health should be considered. People who suffer from underlying health conditions should not be forced to take additional risks. In some cases, employees can even refuse to go on a business trip:

"A business trip can be refused when there is a German Foreign Office travel warning for the region. Then the work performance is associated with considerable risks to life or health and is therefore unacceptable," said Klachin. A travel warning currently concerns the Chinese province of Hubei including the city of Wuhan. The German Foreign Office advises against travel to other parts of China and to some areas of South Korea, Iran and Italy.  Currently even all postponable and not absolutely necessary journeys are advised against

Hygiene and information

It is also a part of the employers' duty of care to see to certain hygiene regulation and to take certain measures in order to stop the spreading of disease. The employer should inform the staff both about the risk of infection and disease and ways to protect themselves. This is especially important when a colleague has caught the disease or has returned from an affected region. Also, the employer can order employees that have returned from such a region to stay at home until they can be sure that they are not infected. In this case, the salary must be paid for this period.

Employment law expert Sönke Plesch of Pinsent Masons said; "If there is an infection or a reasonable suspicion, the health authority in charge should be informed. In order to prevent the virus from spreading, the public health department can impose occupational bans on activities and even quarantine. In this case, the law provides for compensation equal to the loss of earnings for a period of up to six weeks". The payment can be refunded by the authority in charge upon request.

If the business is discontinued by official order this is at the employer's risk, Plesch said.

"In this case the employer is generally obliged to pay the salary. During this, the staff can also be sent into time off in lieu, provided this is legally possible in the individual case. In addition, under certain conditions, holiday entitlements may also be credited during this under a company agreement," he said.

If the employee is well but their child is sick and there is no other option to provide care for it, the employee is entitled to continuous salary for five days, provided the child is no older than 8 years. "This period can also be lengthened when due to the child's situation no other care can be arranged," Plesch said.

It is also possible for the employee to be absent without salary. Depending on the family situation, a certain number of days can be taken to see to the needs of sick children no older than 12 years. In these cases the employee receives no salary from the employer, but sickness benefits from health insurance.

The same rule applies when kindergardens and schools are closed. For lack of a clear legal framework, one can expect that parents who are can't work through no fault of their own are entitled to continued payment of wages, Plesch said. But the employee and the employer should first try to find a solution that serves both, for example by taking time off in lieu or working from home.

"From our point of view, even short-term agreements in consultation with the works council can be useful for clarifying the upcoming provisions. We recommend that a general protection and communication concept should be drawn up for future cases, if necessary in coordination with the works council," Plesch said. "In this concept, the duties, protective measures and behavioral patterns mentioned can be recorded so the company is prepared in case of emergency."