In the current situation, the vast majority of employers are taking precautions and preventive measures to prevent the spread of COVID-19 within the company, regardless of the legal situation. In this article, you will find an overview of the current legal situation and the associated rights and obligations of employers. Furthermore, we inform about the statutory measures facilitating short-time work which, according to the press release of the Federal Ministry of Labour and Social Affairs of 10 March 2020, is to come into force as early as April 2020 on the basis of a statutory ordinance within the framework of the so-called "Work-of-Tomorrow-Act". For more information with respect to other jurisdictions and daily updates on the current situation, please also access the Dentons COVID-19 hub.

Starting Point

1. What are the current care obligations of an employer?

Sec. 618 German Civil Code (“BGB”) establishes a general duty of the employer to take appropriate protective measures (e.g. instruction of the workforce, possibility of cleaning hands, etc.). The provision is supplemented by a large number of other provisions of occupational health and safety law. All ultimately aim to ensure that the employer takes action to protect against health hazards in the company. They must take measures to prevent the spread of diseases.

2. Does an employee have a right to refuse performance if, for example, the employer does not provide disinfectants?

In principle, the right to refuse performance can be considered in the event of a breach of the employer's protective duties. However, this would be disproportionate if disinfectants were not available.

3. If employers instruct business trips, must they be taken?

The general risk of infection does not mean per se that employees are allowed to refuse business trips. Employers should, however, limit business trips to what is strictly necessary, and should altogether avoid business trips by employees to risk areas.If there is a specific rather than a general risk of infection, employees may refuse to travel, especially if they are at risk of serious illness (elderly people, immune deficiency, heart or lung disease, etc.).

4. Is the employer obliged to draw up a pandemic plan?

Sec. 3 (1) Working Protection Act obliges the employer to ensure the safety and health of employees at work by taking the necessary measures. They must therefore also protect the employees from the risk of infection that exists at work due to contact with colleagues. Easily transmissible infectious diseases, which are associated with particularly significant health risks, represent a particularly high-risk potential in this respect. However, the measures taken by the employer to prevent this risk from spreading to employees may depend on how circumstances develop. The employer does not necessarily have to draw up a pandemic plan (see DGUV tips: https://publikationen.dguv.de/widgets/pdf/download/article/2054), as long as they take other suitable measures.

5. Is there currently an obligation to grant garden leave? Or is garden leave only voluntary?

There is currently no general obligation on employers to grant garden leave. Exempting employees from work who are not sick is therefore voluntary.

6. Is the employer obliged to exempt an employee from work who returns from a risk area?

There is no obligation to exempt such employees from work, but it makes sense to grant garden leave, especially to avoid infecting a large number of colleagues and to avoid any rights of colleagues to refuse performance (see point 7).

7. May an employee be absent from work if their colleague returns from a risk area and continues to work?

If the employer violates their obligation to take measures to prevent a risk to the health or life of employees, an employee may be entitled to refuse performance, taking into account the principle of proportionality. In such a case, there are good reasons for a right to refuse performance, e.g. if the two employees work together in one room and the colleague shows symptoms of illness.

8. Are employees entitled to remuneration if they are exempt from work without illness?

Yes, if the employer defaults on accepting the services, the employee then receives his or her remuneration even without work.

9. Are there special obligations towards pregnant women and immune-deficient persons in connection with COVID-19?

The Committee on Biological Agents (ABAS) has classified COVID-19 in risk group 3 according to the Ordinance on Biological Agents from a preventive point of view by decision of February 19, 2020. However, this classification does not per se lead to a ban on employment of pregnant women. Whether a prohibition of employment is to be imposed on a pregnant woman because of an irresponsible risk must be decided on a case-by-case basis after a risk assessment by the employer. According to the Federal Office for Family and Civil Society Affairs (BAFZA) (as of April 14, 2020), a pregnant woman may only continue to work if effective protective measures ensure that the pregnant woman is not exposed to a higher risk of infection at work than the general population. There is an increased risk of infection, for example, when there is contact with constantly changing persons (e.g. in the health service, in sales or in an open-plan office). There is no special legal protection for immunocompromised employees, but increased care may be necessary.

10. May an employee be absent from work if their child's nursery is closed for quarantine or as a precautionary measure and they cannot work? Are they entitled to remuneration?

For a limited period of time, an employee does not have to report into work if childcare cannot be provided otherwise. In principle, there is no entitlement to continued payment of remuneration. Only in exceptional cases can this be derived from Sec. 616 BGB, provided that the claim is not excluded by the employment contract. Sec. 45 Social Act V (Sickness benefit in the case of illness of the child) only applies if the child is ill, not if the nursery is merely closed.

11. How must the employer involve the works council in the current measures?

Many regulations necessary for protection against the corona virus are subject to co-determination by the works council. In unforeseeable and serious extreme situations, the employer may unilaterally implement regulations to protect his employees without the works council's participation. However, whether such an emergency exists in connection with the novel corona virus can be difficult to assess, depending on the individual case. In order to remain legally secure and able to act quickly in potential emergencies, it is therefore advisable for employers to make comprehensive precautionary arrangements with the works council. The conclusion of a framework works agreement ("pandemic plan/emergency plan"), which covers all regulations which are or can become necessary to protect the health of the employees (sec. 87 (1) No. 7 Works Constitution Act (“BetrVG”)- Health Protection) and serves to maintain the operation, is a good idea for this purpose. 

Among the useful precautionary regulations are above all hygiene rules that reduce the risk of infection. This includes, for example, regular thorough washing and disinfecting of hands (Sec. 87 (1) No. 1 BetrVG). Furthermore,  regarding the change of working time (overtime) or the implementation of short-time work Sec. 87 (1) No. 2, 3 BetrVG) are recommendable. This applies likewise to regulations regarding the temporary allocation of work that is not owed under the employment contract (Sec. 99 BetrVG).

12. How does the current situation affect works meetings?

Due to COVID-19, several states and municipalities have issued general decrees prohibiting large events with, for example, more than 1,000 persons. According to the decrees, this also applies to private events and thus also affects works meetings. Works councils are obliged to hold quarterly works meetings. The works council is solely responsible for convening, but also for cancelling a meeting. With its decisions the works council must orient itself however in accordance with Sec. 2 BetrVG at the well-being of the employees under consideration of the operational interests. The execution of a work meeting despite the increased danger of infection is not in the interest of the well-being of the enterprise or the coworkers. With reference to an inadmissible exercise of a right, the employer can demand from the works council not to accomplish a meeting under the presently prevailing circumstances.

13. May the employer ask about the holiday destination or, in the case of incapacity for work, about its causes?

No, even in view of the "Corona crisis", the employer must not ask about it. According to case law, an employee may even answer inadmissible questions untruthfully. However, it is sometimes argued that, by virtue of an accessory obligation under the employment contract, the employee must disclose to the employer if he or she has previously spent holidays in a risk area. If one follows this view, this must apply all the more if the employee knows positively that he or she is ill with COVID-19. In the case of illness with COVID-19, there is also a medical obligation to notify the public health department (see secs. 6 and 8 Infection Safety Act (“IfSG”) in conjunction with the Corona Virus Notification Regulation). As a rule, the public health department will also inform the employer. 

Suspicion of COVID-19 - What next?

14. Can employers require employees to work from home office?

Unless otherwise agreed in the employment contract, an instruction to work in the home office cannot be effectively issued (see e.g. Regional Labour Court Berlin-Brandenburg dated 14th November 2018 - 17 Sa 562/18). In exceptional cases, with reference to an emergency and the ancillary obligation under the employment contract to consider the employer's interests (including the avoidance or minimizing of economic damage), it can be argued that an instruction may be issued, irrespective of the employment contract agreement. It may also be possible to conclude works agreements which provide for the implementation of home office work (to the extent that parts of the case law (in dispute) assume that employment contracts are open to works agreements). However, the requirements for the two possibilities of allowing the employee to work from his or her home office against the employee's will in the absence of an employment contract provision must be carefully examined.

The instruction to work in the home office would be a relocation according to sec. 99 BetrVG and therefore requires the consent of any existing works council. With reference to an emergency, however, it could also be argued here that the transfer is initially effective without co-determination, but that it is immediately made up for.

15. Is there a right for the employee to work only from home office?

No, as far as the employment contract of an existing company agreement does not regulate the corresponding right of the employee. The general risk situation does not lead to a different result.

16. Is there anything that employers need to consider when allowing home office activities?

In the case of only exceptional and temporary work in a home office, this does not qualify as a teleworking job win the meaning of the Workplace Regulation, so that its requirements do not necessarily have to be met. In any case, however, care should be taken to protect data privacy, which can generally be exposed to increased risks when working in the home office, especially if printed documents are taken home. If no rules of conduct have yet been established, we recommend that employees working in the home office on short notice should again be given a short information sheet with the most important information and rules of conduct (lock screen when leaving the notebook, safekeeping of documents that are taken home, privacy screen if others can watch, etc.).

17. May or must the employer release an employee if he or she 'only' shows signs of suspicion (e.g. coughing) but no evidence of illness?

In principle, an employee has a right to employment; any interference with this right must be reserved by contract and must be for objective reasons. However, the greater the evidence of illness of COVID-19, the more likely it is that an exemption from the duty to work will be justified, e.g. on the basis of Sec. 618 BGB. In practice, an employee will rarely attack the 14-day release from work, even in the absence of effective legal protection.

18. Must an employer continue to pay the remuneration if a suspected case arises and (1) the business is closed down by the employer itself as a preventive measure or (2) as a result of an official order?

Yes, this general business risk must be borne by the employer. In such cases, the remuneration must continue to be paid. 

Although it is argued that in the event of officially ordered closure of a business, the employer must pay compensation to the employees in application of Sec. 56 IfSG, which can be reimbursed upon application to the competent authority. However, it is currently unclear how administrative practice will develop in this respect. Sec. 56 IfSG is aimed at quarantine measures for individual persons, not at an indirect effect of a plant closure. Employers should examine the possibility of agreeing to short-time working, particularly in the event of closure due to an official order (see question 22). Against this background, too, it makes sense to take preventive measures.

19. Must the employer continue to pay the remuneration if an employee is isolated as a result of an administrative order?

According to Sec. 56 IfSG, employees are legally treated as if they were ill. They have a maximum six-week compensation claim (in the amount of the loss of earnings). The employer has to pay the compensation and will reimburse it upon application (Sec. 56, para. 5 IfSG).

COVID-19 Infection - Obligations and possibilities for action

20. After a proven case, may health checks (e.g. fever measurement) be carried out on all employees still working as a condition for access to the establishment?

That depends on the individual case. Among other things, the fundamental rights affected as well as the reason (only one suspected case? Several proven cases?) and the type of health check must be taken into account in the weighing process. Arbitrary measures are inadmissible in any case. A works council must be involved. Careful attention must be paid to the processing of health data, which is subject to special protection.

21. Does the employer owe continued payment of remuneration in the event of illness if the employee, being aware of the travel warnings of the Foreign Office, has taken holiday in a risk area and falls ill with COVID-19 there?

That depends on the individual case. Pursuant to Sec. 3 (1) sentence 1 Continuation of Remuneration Act, an employee can claim continued remuneration if he or she is not at fault for the illness. Infectious diseases are in principle a general life risk and therefore not culpable. There is as yet no established case law on corona infections. However, the same could apply as for the practice of dangerous sports, where the risk of injury is so great that even a well-trained athlete cannot avoid this risk if all rules are carefully observed. In this case, the claim to continued payment of remuneration can be lost in the event of an injury due to participation in a hazardous sport and a resulting inability to work. The same could be argued if an employee, contrary to government travel warnings, takes a holiday in an area with a significantly increased risk of infection.

This will however be difficult for the employer due to the fact that COVID-19 occurs worldwide and the employee could object that he or she had already contracted the disease unnoticed in Germany before the holiday and only became ill during the holiday abroad.

Nevertheless, as a precautionary measure - also to increase awareness of the problem - employers could point out to their employees that, although state travel warnings do not prevent them from taking a private holiday in a risk area, if they suffer from corona disease as a result, their claim to continued remuneration may fail.

22. Can employers apply for short-time work because of the Corona crisis? If so, under what conditions?

Short-time work may be necessary, for example, if deliveries of materials fail to materialise and working hours have to be reduced as a result, or if government protective measures ensure that the company is temporarily closed. The introduction of short-time work requires either the co-determination of the works council (if any) or the consent of the employee if no works council has been established and no short-time work regulation is agreed in the employment contract.

Short-time work compensation will be granted - without taking into account the investment package of 8 March 2020 - if, among other things, there is a significant loss of working hours. This is the case if (1) it is due to economic reasons or an inevitable event, (2) it is temporary and (3) unavoidable, and (4) at least one third of the employees employed in the company are affected by a loss of remuneration of more than 10 percent of their monthly gross salary in the respective claim period.

23. What facilitations does the "Work-of-Tomorrow-Act" and the statutory ordinance to be issued on the basis of Sec. 109 (5), Social Act III, new version, provide for short-time work?

The agreed changes to the short-time working allowance are to come into force as early as April for a limited term until the end of 2020. They have not yet been published. According to the currently available notifications, the following reliefs are to take effect with regard to short-time work:

• Companies can already use short-time work compensation if only 10% of the employees can no longer be employed.
• The requirement to first use the possibility of reducing working time balances under existing agreements on working time fluctuations, either in whole or in part, will be waived in full or at least in parts.
• Employers will receive financial relief on social security contributions payable during short-time working.
• Temporary workers should also be entitled to short-time work compensation.

The Dentons’ employment law team in Germany will be happy to assist you at any time if you have any questions about the decisions or how to proceed. Please contact Dr. Markus Diepold, Dr. Sascha Grosjean, Frank Lenzen, Minh Riemann, Wiebke Schulz or Lukas Jäger.