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Your PWWL editorial team
Christine Wahlig
Attorney at law
Editorial Management
Alice Tanke
Marketing Manager
The Corona Pandemic continues to keep Germany on its toes despite the wide-spread easing of the restrictions. The infection numbers are rising, which is partly due to the holiday season and travelling abroad. The federal and state governments are trying to counteract by referring to the travel warnings of the Robert Koch Institute, quarantine measures and a planned compulsory testing. What are the consequences of this with regard to the planned return to work? We will give you an up-to-date overview of the consequences under labour law.
According to a regulation of the Ministry of Health, people returning from vacation can now be tested for the coronavirus free of charge. According to the regulation, the tests will be available at health authorities and doctors within 72 hours after returning home. The costs for the tests will be covered by the statutory health insurance. However, the Ministry of Health had already signaled that the state government plans cover the costs through an increased subsidy to the health insurance companies.
The Ministry of Health also plans to introduce compulsory testing for people returning from international risk areas with high case numbers. A regulation is planned for this purpose, which according to the Ministry is currently being coordinated with the federal states and is expected to come into force in the course of this week.
On the basis of a draft regulation on quarantine measures for entering and returning travelers to prevent the coronavirus, it already applies at the level of the federal states that after returning from a risk area, persons must contact the responsible health authority and remain in home quarantine for 14 days. This core element of the draft regulation has been implemented by almost all federal states, although the wording and structure of the regulations of the individual federal states differ slightly.
The respective federal state regulations often include the option of an early end to the 14-day quarantine if a negative test result can be proven. The performance of compulsory coronate tests will therefore also affect the quarantine period.
The principle of “no work, no pay” applies fundamentally in the employment relationship, i.e. if the employee is not able to work (Section 275 BGB), the remuneration is no longer owed (Section 326 BGB). The most frequent exceptions to this principle are the payment of remuneration in case of illness (Section 3 EFZG) and during holidays (Section 11 BUrlG). In addition, there are cases in which the employer does not accept the offered work (e.g. in the case of release from work, Section 615 BGB), temporary prevention (e.g. in the case of illness of a child, Section 616 BGB) and – in times of pandemic – the state compensation claim under Section 56 (1) of the Infection Protection Act (IfSG).
For employers and employees, the question now arises as to how travel warnings, travel to risk areas, dealing with returnees and coronate tests affect the obligation to pay remuneration?
Compulsory quarantine at home prevents employees from offering their services to employers at the place of work in the company. This is different if an employee is entitled and obliged to work remotely. In this case, employees can effectively offer their services even during the quarantine.
In cases of prevention of work, the relationship between Section 56 IfSG and Section 616 BGB is decisive with regard to the obligation to pay remuneration.
A claim for compensation under Section 56 (1) IfSG may be considered if the individual employee has been ordered by the health authority to undergo compulsory quarantine, e.g. on the basis of a federal state regulation. However, the claim for compensation pursuant to Section 56 (1) IfSG is only granted if the employee (only) suffers a loss of earnings (monocausality) due to the compulsory quarantine ordered by the authorities. It therefore does not exist if the employer is obliged to (continue to) pay remuneration under other regulations.
In many cases, the employer will therefore pay the remuneration because of only temporary prevention of work performance in accordance with Section 616 BGB. According to Section 616 sentence 1 BGB, the employee does not lose the remuneration entitlement if he is prevented from providing the service
However, the applicability of this provision is often excluded by an employment contract or collective agreement. This should definitely be checked in the context of remuneration entitlements for pandemic absences.
According to case law, a potential risk of infection already constitutes a personal case of prevention in accordance with Section 616 Sentence 1 BGB (BGH of 30 November 1978 – III ZR 43/77), irrespective of an official prohibition of employment. Thus, all employees who have been in a risk area and are still in the incubation period or have not yet tested negative are covered by this regulation.
The decisive factor for the claim to continued payment of remuneration pursuant to Section 616 BGB is whether the employee culpably caused the prevention of work. Accordingly, if a vacation destination was already included in the list of risk areas of the Robert Koch Institute before the start of the trip, the employee is culpably unable to perform his work during the compulsory quarantine. The entitlement to continued payment of remuneration in accordance with Section 616 BGB therefore only exists if the vacation destination was only declared a risk area during the trip.
The question as to which period of time still represents “reasonably insignificant period of time” is answered inconsistently. In any case, a period of one week represents a “reasonably insignificant period of time”. Furthermore, it is disputed in the legal discussion whether a maximum limit is two or – based on the continued payment of remuneration in the event of illness – even up to six weeks. This is decisive because the claim to remuneration under Section 616 BGB lapses completely if the “reasonably insignificant period of time” is exceeded and is then not paid for a shorter period.
In the end, the decision depends on the individual case. However, in the case of a two-week quarantine, the employee is generally no longer expected to be “temporarily” prevented from working.
The introduction of compulsory Corona tests after returning from a risk area therefore has a major impact on the entitlement to remuneration under Section 616 BGB. Up to now, the federal state authorities often handle quarantine cases in such a way that they grant the claim for compensation according to Section 56 IfSG after only about one week of quarantine, thus limiting the competition with Section 616 BGB in terms of time. In the future it can be assumed that the result of the compulsory tests can be expected within one week and thus within a “reasonably insignificant period of time” according to Section 616 BGB, so that the employer has to pay compensation primarily according to Section 616 BGB. However, it is recommended to coordinate the time frame with the local authorities with regard to the respective test periods.
For employees who have deliberately travelled to a risk area with a travel warning and therefore have no claim to remuneration according to Section 616 BGB, compensation according to Section 56 IfSG is probably also ruled out. In the legal discussion, it is also argued that the employee’s contributory negligence must be taken into account with regard to the claim for compensation under Section 56 IfSG.
A claim for compensation according to Section 56 IfSG can therefore only be considered for employees for whom the application of Section 616 BGB is excluded contractually by collective agreement or for other reasons.
According to Section 56 IfSG, the employee receives the net salary as compensation for the first six weeks of quarantine, initially paid by the employer. The employer can request reimbursement of the compensation paid.
If a business trip abroad leads to quarantine of the employee, the employer is obliged to pay remuneration during the quarantine. In this case the employee is not culpable, neither according to Section 616 BGB nor according to Section 56 IfSG. However, the state compensation of the employer according to Section 56 IfSG is likely to be lost, as it is a matter of business trip-related expenses. However, this has not yet been clarified in court.
An employee who is unable to work is generally entitled to continued remuneration in the event of illness in accordance with Section 3 (1) EFZG. However, this only applies as long as the illness is the sole cause of the inability to work and the employee does not cause the inability to work through his own negligence.
If the employee falls ill during the vacation, these days are not considered as vacation days (Section 9 BurlG) and the employee receives continued remuneration according to Section 3 EFZG.
However, if the employee falls ill after returning from the risk area and during the officially ordered quarantine, the legal situation is complicated. In any case, the incapacity to work due to illness is not monocausally caused by the illness, but also by the quarantine, if the employee could not work remotely during the quarantine. According to the prevailing opinion at present, in such cases the officially ordered quarantine is to be regarded as the primary obstacle due to the compulsory effect of public law (Section 56 IfSG) compared to the incapacity to work caused by illness. This is controversial if the employee falls ill with Covid-19. If no priority is given to the claim for compensation according to Section 56 IfSG, the employee’s claims to continued remuneration are transferred to the state (Section 56 (7) IfSG) with the consequence that the employer does not receive any reimbursement. However, this has not yet been clarified in court. If the employee falls ill with another illness, the right to compensation remains.
In the context of continued payment of remuneration in the event of illness, particularly reckless or deliberate behavior with regard to one’s own health is required in order to exclude one’s entitlement of continued remuneration. It is still unclear whether deliberate travel to a risk area should already constitute such fault or whether further actions by the employee that are a risk to health must be added. If an employee in the current situation travels privately to a risk area, he or she is, in our opinion, particularly reckless in taking a risk, which must then be assessed and clarified in each individual case. The employee is obliged to cooperate and must disclose the circumstances leading to the illness. If he does not comply with this, it is to be assumed that he is negligent towards himself. However, the employer bears the risk of the lack of clarification.
Sometimes employers feel that their duty of care towards other employees and customers obliges them to release employees from work in the office who are in direct contact with people who have been ordered to be quarantined by the authorities. The right to release these employees will in most cases be covered by the duty of care towards the rest of the workforce. If there is no (enforceable) possibility of working remotely in these employment relationships, the employer is obliged to pay remuneration during the release (Section 615 BGB).
The potential danger of infection is very abstract for these persons, so that one cannot assume that they are prevented from working within the meaning of Section 616 BGB. Compensation for these employees according to Section 56 IfSG is also ruled out because this requires an official measure such as an compulsory quarantine against the person himself.
As a result, the employer is obliged to pay compensation according to Section 615 BGB because the employee has effectively offered his work performance, but the employer does not assign him any work due to the release and thus does not accept the offer of work.
This also applies if too many of employees of an employer are absent due to an infection or an compulsory quarantine and the employer cannot maintain operations with the healthy employees. In this case, the obligation to pay compensation to the employees willing to work remains unaffected. The employer bears the risk of not being able to operate his business. However, the previous examples of slaughterhouses and farms have shown that in such cases a quarantine is often ordered for all employees.
If an employee deliberately and intentionally travels to a risk area and thereby accepts that he/she will not be able to perform his/her work afterwards, employers also have the possibility of a warning letter and, in serious cases, termination.
The employer’s duty of care towards the remaining employees and customers also includes the right to ask whether an employee has been in a risk area. Only this right to ask this question enables the employer to ensure that he can fulfil his duty of care towards the remaining employees and that he does not expose them to an irresponsible risk of infection.
Irrespective of holiday trips, it is currently not possible to foresee how long corona-related absences of employees can be expected. If the work assignment allows, it is therefore advisable for employers to reach agreements with employees – at least temporarily – on remote working in order to mitigate productivity restrictions through quarantine measures on the one hand and to be able to send employees “home” as a precautionary measure to protect staff and customers on the other.
In addition, consideration should also be given to restricting the obligation to pay remuneration under Section 616 BGB by means of an employment contract so that it does not apply at least if the employee is entitled to other claims.
By Dr. Alexander Lorenz und Karsten Keller
