The new Corona virus (COVID-19) is spreading all over the world and is dominating the global news and public life. Schools are closed, public events are cancelled and entire regions have been locked down. In addition, the virus already has severe economic consequences.
One of the main employment law related questions arising due to the spreading virus is whether and to what extent it affects the employees’ obligation to perform their work (in the workplace) and their corresponding claim to remuneration:
- In principle, employees are obliged to perform their work. There is no general legal right for employees under German law to refuse performing their work in case of a pandemic. If employees do not appear at work without a valid excuse, this can result in a warning and possibly even dismissal.
- The same generally applies to business trips within Germany and abroad, which are within the employee’s contractual obligations. However, an employee has the right to refuse going on a business trip if the German Foreign Office issues an official travel warning. Currently, there is a worldwide travel warning for touristic, not necessary travel. In addition, travel warnings for any travel are in effect for certain regions of China, France, Italy and Spain. The situation changes almost daily, therefore, it is advisable to verify whether a travel warning exists for a certain reason shortly before the intended start of the business trip. Best practice at this stage is that any business travel that is not business crucial shall be avoided.
- Working from home has become significantly more common over the past few weeks due to the Corona virus. It has to be noted that neither the employer, nor the employee may unilaterally decide to change the regular workplace to home office, unless such right has been validly reserved in the employment contract or another agreement between the parties. If this is not the case, employer and employee have to first agree if and to what extent home office shall be allowed. Employers should bear in mind their obligations regarding health and safety, which continue to apply despite the special situation.
- Just like in many other countries, all schools and kindergartens are currently closed in Germany for several weeks in order to slow down the spreading of Corona virus. Due to this, many employees are unable to work due to childcare duties. In general, employees may refuse to perform their work for as long as they need to take care of their own children and there is no other suitable arrangement and may not be sanctioned for such refusal. There is no fixed limit regarding the age until children need to be supervised and cannot be left at home alone during the day. However, an age limit of 12 years can be derived from German social security law.
Closely related to the question of whether an employee remains obligated to perform their work during the pandemic is the question of whether they maintain his claim to remuneration during times where they do not work for reasons related to the pandemic:
- Regarding the closure of schools and kindergartens, the abovementioned employees’ right to refuse performing work due to colliding duties of childcare does not automatically mean that they are entitled to continued payment of their remuneration during the time they do not work. German law states that an employee does not lose their claim to remuneration when they are temporarily prevented from performing their work due to a personal reason they are not at fault for. However, the applicability of this regulation can be excluded in the employment contract or a collective bargaining agreement and often is in practice. Furthermore, a closure of the schools and kindergartens over a timespan of several weeks does not qualify as “temporary” in terms of the law. Therefore, employees will in most cases not be entitled to continued payment of their remuneration when they do not perform their work due to childcare duties. However, we have experienced that many employers aim at finding pragmatic solutions during this extraordinary situation and grant employees between five to ten working days of paid leave. There are ongoing discussions whether in this case the Infection Protection Act may result in payment obligations of the State. However, on the basis of the wording of the law, this is currently unlikely to be the case. Nevertheless, this does not hinder employers from trying to apply for such monetary help. At this stage we do not thing the claim will be successful unless the law is changed at short notice, which we would not fully exclude in the circumstances.
- In case an employee becomes unable to work due to an infection with the Corona virus, the regular statutory rules apply, which grant the employee a claim to continued payment of remuneration for up to six weeks.
- Anyone, who has been segregated and suffers a loss of earnings while not being ill (i.e. has few or no symptoms or simply has to be quarantined due to a potential risk of infection), will generally receive compensation in the form of continued remuneration. However, in these cases, the costs can be reimbursed to the employer upon application to the responsible health authorities, if the respective statutory requirements are met.
- If the employer is no longer able to keep up its business operations due to the pandemic and therefore can no longer employ healthy employees who are willing and able to work, the employer remains obliged to pay remuneration to these employees. In practice, many employers currently apply for short-time work at the German unemployment agencies. Short-time work allows the employer to temporarily reduce the employees’ working time and remuneration by up to 100%. The employees receive compensation of up to 67% of their lost income from the state. Short-time work is currently permissible for a duration of up to 12 months, however, this may still be extended to 24 months through a government order.
The German government has already announced support for companies severely affected by the spread of the Corona virus. In a first step, it has been decided to facilitate access to short-time work compensation. Significant financial aids for endangered companies are to be expected, but details are not clear yet. Furthermore, there have been adjustments aimed at protecting the operability of the health system. Employees suffering from minor respiratory symptoms can now obtain a sick note from their doctor for up to seven days by telephone. Employers will in practice not be able to challenge the validity of such sick note.
In summary, the current Corona virus pandemic also entails many issues related to German employment law, not all of which can be answered with absolute certainty by applying the existing statutory rules. However, the law does offer sufficient guidance to identify the ground rules and possibilities to act. Within this framework, employers, employees and authorities must work together to find pragmatic solutions in this challenging time.
von Meike Christine Rehner und Verena Braeckeler-Kogel, MAES (Basel)
