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.<\/p>\n\n\n\n
In view of the\nspreading virus, various questions of practical relevance arise in terms of\nlabour law, which we would like to answer in our contribution: <\/p>\n\n\n\n
There is no\ngeneral right of the employee to refuse work performance in cases of a\npandemic. It is part of the employee’s general life risk to be exposed to an\nincreased risk of infection on the way to work or through contact with\ncolleagues and customers. Simply not appearing at work is not an option under\nemployment law, but rather a refusal to work, which can result in a warning and\npossibly even dismissal.<\/p>\n\n\n\n
In principle,\nemployees are obliged to perform their work. This may also include business\ntrips abroad during a pandemic. An employee only has the right to refuse to\nperform his or her work if the German Foreign Office issues an official travel\nwarning. In the case of a travel warning, the performance of the work is\nassociated with considerable risks to life or health which the employee cannot\nbe reasonably expected to take.<\/p>\n\n\n\n
However, the\nlimit of reasonableness is not yet automatically exceeded if the business trip\nis to take place in a region for which only a safety warning ( eg\n“Postpone unnecessary travel if possible”) is available.<\/p>\n\n\n\n
In these cases,\nthe unreasonableness of a business trip depends on balancing the interests of\nthe employee and employer. However, without the occurrence of special\ncircumstances relating to the employee – such as the employee’s physical\ncondition – the balancing of such interests will not regularly lead to\nunreasonableness only on the basis of the security advice of the German Foreign\nOffice. Otherwise, in view of the large number of countries in which safety\nwarnings apply, the employer would de facto be deprived of the possibility of\nordering business trips and making full use of his right to issue instructions.<\/p>\n\n\n\n
A travel\nwarning has been in effect since the end of January, at least for parts of China\n– the megacity of Wuhan and Hubei province. There, the risk of infection and\nthe health risk are currently considered high. For the remaining parts of\nChina, only a safety warning applies. So the employer could well order a trip\nto Beijing or Shanghai.<\/p>\n\n\n\n
At company\nlevel, problems arise when employees return to Germany from regions at risk,\nwhether from foreign assignments or simply from vacation.<\/p>\n\n\n\n
In principle,\nemployees have no obligation to inform the employer about the nature of an\nillness. Exceptionally, however, such an obligation to inform exists if the\nemployer has a legitimate interest in such information. This concerns\ninfectious diseases that require measures to protect other employees. It can\ntherefore be assumed that a sick employee should inform the employer about an\nillness with the coronavirus if other employees are potentially at risk from\nthis illness.<\/p>\n\n\n\n
Under certain\ncircumstances, the employer may be required to inform his employees about the\nexisting risk of infection and illness and to inform them about preventive\nmeasures and appropriate behaviour. This applies in any case if the employer is\naware of an employee’s illness or has concrete indications of the risk of\ninfection in the company. If the employer then fails to provide information\nbased on the general duty of consideration and its special duty of care, it may\nbe liable for damages if other employees fall ill as a result.<\/p>\n\n\n\n
If an employee\nis unable to work due to an outbreak of illness, they are entitled to continued\nremuneration under normal sick pay rules. This also applies in cases of a\npandemic. <\/p>\n\n\n\n
Anyone, who is\nsubject to a ban on work or is subjected to a ban on work on the basis of the\nGerman Infection Protection Act (IfSG) or has been segregated and suffers a\nloss of earnings while not being ill (i.e. they have few or no symptoms or\nsimply have to be quarantined due to a potential risk of infection), will\ngenerally receive compensation. The compensation is calculated according to the\nloss of earnings. In the case of employees, the employer must continue to pay\nwages for a maximum of 6 weeks, unless otherwise provided for in collective or\nindividual agreements. The amounts paid out by the employer will be reimbursed\nto the employer upon application to the responsible health authorities, if the\nrespective statutory requirements are met.<\/p>\n\n\n\n
In any case,\nthis option should be checked in detail, if such cases lead to a financial\nburden. <\/p>\n\n\n\n
In the event of\na pandemic and mass illness of the workforce, the employer basically bears the\nso-called operational risk. This means: If the employer is no longer able to\nkeep up business operations and therefore can no longer employ healthy\nemployees who are willing to work, the employer’s obligation to pay wages\nremains.<\/p>\n\n\n\n
If the employer\ncan no longer keep up its business or can only maintain it to a limited extent,\nit is advisable to first reduce accumulated overtime, to order the granting of\nvacation or – if the prerequisites are met – short-time work.<\/p>\n\n\n\n
However, the\nreverse also applies in the opposite case: the employer can oblige the healthy\nemployees still working in the company to work overtime as part of their\ngeneral duty of loyalty in order to mitigate the economic consequences for the\ncompany and, in particular, to be able to complete a project or order on time\nand in the proper manner. The loss of many employees due to a pandemic\nrepresents an unforeseeable emergency for the employer through no fault of its\nown.<\/p>\n\n\n\n
The employer is\nalso entitled to unilaterally exempt infected or sick employees from work in\norder to protect the rest of the workforce from infection. This also applies in\nthe event of the mere suspicion of infection or illness. In this case, the\nemployee has no claim to be assigned work as the health protection of the\nworkforce prevails over ghe employee\u2019s individual interests. However, the\nemployee’s claim to continued remuneration remains in force.<\/p>\n\n\n\n
For example,\nthe Webasto company, where German employees were infected by a Chinese visitor,\ntemporarily closed down its operations in response to the infections in its\nworkforce and offered to allow employees to work from their home offices.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
By Eva Wi\u00dfler und Verena Braeckeler-Kogel, MAES (Basel)<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":10,"featured_media":2391,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_seopress_robots_primary_cat":"none","_seopress_titles_title":"Workplace impact of pandemics - Pusch Wahlig Workplace Law","_seopress_titles_desc":"Pandemics like coronavirus have a considerable impact on workplaces. Read about legal obligations of employees & employers arising from such situations.","_seopress_robots_index":"","footnotes":""},"categories":[93],"tags":[122,112,137,113],"class_list":["post-2260","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-spotlights","tag-continued-remuneration-payment","tag-occupational-safety","tag-pay","tag-right-to-issue-instructions"],"acf":[],"_links":{"self":[{"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/posts\/2260","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/comments?post=2260"}],"version-history":[{"count":3,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/posts\/2260\/revisions"}],"predecessor-version":[{"id":2266,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/posts\/2260\/revisions\/2266"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/media\/2391"}],"wp:attachment":[{"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/media?parent=2260"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/categories?post=2260"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/pwwl.de\/en\/wp-json\/wp\/v2\/tags?post=2260"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}