Workplace impact of pandemics like the coronavirus

We speak of a pandemic when a disease breaks out in an unrestricted manner, i.e. potentially across continents. The outbreak of a pandemic has become a reality also in more recent years. We vividly remember swine flu, SARS and avian flu. In this still young decade, the new coronavirus, which has now also appeared in various countries outside China, is dominating the global news.

In view of the spreading virus, various questions of practical relevance arise in terms of labour law, which we would like to answer in our contribution:

Is it possible for an employee to stay away from work even though they are not ill?

There is no general right of the employee to refuse work performance in cases of a pandemic. It is part of the employee’s general life risk to be exposed to an increased risk of infection on the way to work or through contact with colleagues and customers. Simply not appearing at work is not an option under employment law, but rather a refusal to work, which can result in a warning and possibly even dismissal.

Is the employee allowed to refuse a business trip to China?

In principle, employees are obliged to perform their work. This may also include business trips abroad during a pandemic. An employee only has the right to refuse to perform his or her work if the German Foreign Office issues an official travel warning. In the case of a travel warning, the performance of the work is associated with considerable risks to life or health which the employee cannot be reasonably expected to take.

However, the limit of reasonableness is not yet automatically exceeded if the business trip is to take place in a region for which only a safety warning ( eg “Postpone unnecessary travel if possible”) is available.

In these cases, the unreasonableness of a business trip depends on balancing the interests of the employee and employer. However, without the occurrence of special circumstances relating to the employee – such as the employee’s physical condition – the balancing of such interests will not regularly lead to unreasonableness only on the basis of the security advice of the German Foreign Office. Otherwise, in view of the large number of countries in which safety warnings apply, the employer would de facto be deprived of the possibility of ordering business trips and making full use of his right to issue instructions.

A travel warning has been in effect since the end of January, at least for parts of China – the megacity of Wuhan and Hubei province. There, the risk of infection and the health risk are currently considered high. For the remaining parts of China, only a safety warning applies. So the employer could well order a trip to Beijing or Shanghai.

Does a sick employee have to inform the employer?

At company level, problems arise when employees return to Germany from regions at risk, whether from foreign assignments or simply from vacation.

In principle, employees have no obligation to inform the employer about the nature of an illness. Exceptionally, however, such an obligation to inform exists if the employer has a legitimate interest in such information. This concerns infectious diseases that require measures to protect other employees. It can therefore be assumed that a sick employee should inform the employer about an illness with the coronavirus if other employees are potentially at risk from this illness.

Does the employer have to inform the rest of the workforce if there has been a case in the company?

Under certain circumstances, the employer may be required to inform his employees about the existing risk of infection and illness and to inform them about preventive measures and appropriate behaviour. This applies in any case if the employer is aware of an employee’s illness or has concrete indications of the risk of infection in the company. If the employer then fails to provide information based on the general duty of consideration and its special duty of care, it may be liable for damages if other employees fall ill as a result.

What happens to the remuneration claim of the returned, potentially infected employee?

If an employee is unable to work due to an outbreak of illness, they are entitled to continued remuneration under normal sick pay rules. This also applies in cases of a pandemic.

Anyone, who is subject to a ban on work or is subjected to a ban on work on the basis of the German Infection Protection Act (IfSG) or has been segregated and suffers a loss of earnings while not being ill (i.e. they have few or no symptoms or simply have to be quarantined due to a potential risk of infection), will generally receive compensation. The compensation is calculated according to the loss of earnings. In the case of employees, the employer must continue to pay wages for a maximum of 6 weeks, unless otherwise provided for in collective or individual agreements. The amounts paid out by the employer will be reimbursed to the employer upon application to the responsible health authorities, if the respective statutory requirements are met.

In any case, this option should be checked in detail, if such cases lead to a financial burden.

What can the employer do in case of a pandemic?

In the event of a pandemic and mass illness of the workforce, the employer basically bears the so-called operational risk. This means: If the employer is no longer able to keep up business operations and therefore can no longer employ healthy employees who are willing to work, the employer’s obligation to pay wages remains.

If the employer can no longer keep up its business or can only maintain it to a limited extent, it is advisable to first reduce accumulated overtime, to order the granting of vacation or – if the prerequisites are met – short-time work.

However, the reverse also applies in the opposite case: the employer can oblige the healthy employees still working in the company to work overtime as part of their general duty of loyalty in order to mitigate the economic consequences for the company and, in particular, to be able to complete a project or order on time and in the proper manner. The loss of many employees due to a pandemic represents an unforeseeable emergency for the employer through no fault of its own.

The employer is also entitled to unilaterally exempt infected or sick employees from work in order to protect the rest of the workforce from infection. This also applies in the event of the mere suspicion of infection or illness. In this case, the employee has no claim to be assigned work as the health protection of the workforce prevails over ghe employee’s individual interests. However, the employee’s claim to continued remuneration remains in force.

For example, the Webasto company, where German employees were infected by a Chinese visitor, temporarily closed down its operations in response to the infections in its workforce and offered to allow employees to work from their home offices.

Conclusion

There are no special labour law regulations for a pandemic. Rather, the employer’s powers are governed by the general provisions of labour law, which provide sufficient guidance also during a global health crisis.

By Eva Wißler und Verena Braeckeler-Kogel, MAES (Basel)