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2021 Update – An overview of the most important labour law updates for start-ups

2021 does (not) make everything new. However, a few new developments in labour law are also relevant for start-ups. Dr Michaela Felisiak LLM and Dr Erik Schmid outline the most important labour law news:

Increase in the minimum wage

On 28 October 2020, the Federal Cabinet adopted a further increase in the minimum wage. Since 1 January 2021, a minimum wage of EUR 9.50 per hour has applied; from 1 July 2021, this will increase to EUR 9.60. By 1 July 2022, the minimum wage will be increased in four stages to EUR 10.45.

Act on Employee Health and Safety Controls

On 16 December 2020, the so-called German Act on Employee Health and Safety Controls was adopted. It entered into force on 1 January 2021. This law is designed to tackle abuse and ensure orderly and safe working conditions in the meat industry, but also in other sectors.

In short, since 1 January 2021, it has been illegal to conclude works agreements and employ agency workers in the meat industry. The Act also introduces a requirement to record working time in a system that cannot be manipulated, in order to allow compliance with the minimum wage rates to be monitored. In addition, plant control visits will be carried out more frequently in the future and minimum standards regulate accommodation for workers in collective living quarters for the whole sector.

Increase in “Child illness days”

On 5 January 2021, the Federal and Land Governments decided to increase the sickness benefits that parents may receive when they are not allowed to work because a child is ill. This decision increased the number of child illness benefits days granted for 2021 by 10 days per parent (20 additional days for single parents). This doubled the number of days available. Further, the claim may apply not only for days where a child is actually sick but also in cases where it is necessary to care for the child at home, such as where the school or kindergarten is closed, access to child care is limited or the child is in quarantine due to the COVID-19 pandemic.

Compensation for employees for childcare during the lockdown

Pursuant to § 56 para. 1a of the German Infection Disease Control Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen, IfSG), employees have a right to compensation for the time that they had to look after their children themselves because of the closure of a school or child-care centre. This compensation rule was extended until 31 March 2021 and at the same time, it was expanded to cover situations where a child is in quarantine.

Under § 56 para. 1a of the IfSG, employees will be reimbursed for the loss of earnings in the amount of 67% of their net income, limited to a maximum monthly amount of EUR 2,016.00. This right only applies for a maximum of ten weeks per parent. Single parents have a right to compensation for up to 20 weeks. Employers must pay this compensation for a maximum of six weeks and can seek a refund from the appropriate authorities.

Is there an obligation to receive the COVID vaccination at work? Can your employment contract be terminated if you refuse?

Until now, for vaccinations such as the flu vaccination, the personal rights of the employee were paramount and management could not order staff to vaccinate. As the COVID-19 pandemic is not comparable with a flu outbreak (number of fatalities, progression of the disease, strain on the healthcare system, immunity), the personal rights of the employee are less important.

However, it cannot be said that an order for all employees (of specific groups) to be vaccinated against COVID-19 would necessarily be invalid. In particular, an order for medical and care personnel to be vaccinated against COVID-19 could be legally valid. This occupational group is at particular risk and, on the one hand, could be a potential multiplicator for other risk groups, and, on the other hand, this occupational group is vital for the maintenance of medical care during the pandemic. When there are insufficient hospital staff available to care for patients who have contracted COVID-19, compulsory vaccination could be considered.

Employers may demand that employees fulfil certain requirements in order to be able to carry out their contractual duties. For example, they can order that employees wear protective clothing or be vaccinated against measles in some areas. If the employee refuses to wear protective clothing or vaccinate against measles, they cannot be employed. This principle can also be applied to the COVID-19 vaccination. If the employer decides that only vaccinated employees may have direct contact with residents or patients, employees who are not vaccinated can no longer be employed in accordance with their employment contract. If there are no other positions for the employee where they would not need a vaccination, it is no longer possible to employ them. The employer would be entitled to take employment law sanctions, such as withholding pay or terminating the employment agreement on personal grounds.

Requirement to take a corona test at work – Judgment of the Labour Court of Offenbach of 4 February 2021 in Case No. 4 Ga 1/21

To avoid infecting colleagues, customers or patients, companies have implemented various measures since the start of the COVID pandemic. Regular disinfection of hands, maintaining distance, significantly limiting physical contact, and wearing face masks are now legally and commonly accepted. Even taking temperatures at the factory gate is considered admissible.

When considering the admissibility of such measures, the health and safety of employees, customers, patients, residents and the protection of the health system are to be weighed against the personal and data protection rights of employees. It is currently disputed whether vaccinations may be made compulsory, in particular for certain professions.

The presentation of a negative corona test is a milder measure than compulsory vaccinations. An employer refused an employee entry to the factory premises because the employee refused to take a PCR test. A works agreement provided that a negative PCR test is a requirement for entry to the factory premises.

An employee sought an urgent preliminary ruling to grant him entry to the plant without a test. The action was unsuccessful. The labour law court dismissed the application due to a failure to show the necessary special urgency. In its reasoning, the Court found the non-employment preferable because there was no discernible urgent interest in employment.

This decision makes it clear that issues relating to measures to combat the COVID-19 pandemic are dependent on many factors. The courts view the pandemic as so serious that the employees’ right to determination and personality have become less important than they are for other epidemic diseases, such as the flu.

Extending the special provisions on short-time work and short-time allowance

With the Act on Securing Jobs as a Result of the COVID-19 Pandemic (Job Security Act), the applicable special provisions on short-time work allowances were extended until the end of 2021. These special rules increase the short-time work allowance, for example, from 70 to 77 percent from the fourth month and 80 to 87 percent from the seventh month of short-time work, and the tax-free option to earn additional income from small part-time employment.

The simplification of the procedures for drawing short-time work benefits, the duration of benefits and the reimbursement of social security contributions have also generally been extended until the end of 2021. For example, for establishments that started short-time work before 31 December 2020, the duration of the short-term work has been extended to up to 24 months, but until 31 December 2021 at the latest. The short-term work allowances for cover agency workers have also be extended until 31 December 2021 for those agency workers who were sent into short-term work on or before 31 March 2021.

Employer contributions to supplement short-time work will also remain tax-free until the end of 2021. The so-called “Corona Bonus” (the tax exemption of any aid and support paid to employees in an amount up to EUR 1,500) has also been extended until June 2021.

Draft law on mobile working

On 5 October 2020, Federal Employment Minister, Hubertus Heil, introduced the first draft bill for a new act on mobile working, only to later introduce a revised bill after much criticism. The draft foresees the introduction of a requirement for employees to inform their employer of plans to start working from a home office at least three months before they begin, providing information on the start date, duration, extent and how they plan to divide their time between their home office and the office. Mobile working should then be allowed within the framework of a mutual agreement. The draft bill does not ultimately foresee the right to a specific number of days per year working from a home office. Instead, the draft law introduces a rule on the refusal of a request to work from home, an obligation to record working time and provisions concerning occupational health and safety and accident insurance.

Dr Michaela Felisiak

Dr Erik Schmid

Experts

Dr. Michaela_Felisiak_Experte_BEITEN_BURKHARDT

Dr Michaela Felisiak

Rechtsanwältin, LL.M.

Partner

Dr. Erik_Schmid_Experte_BEITEN_BURKHARDT

Dr Erik Schmid

Rechtsanwalt, Licensed Specialist for Labour Law

Partner

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Start-up Arbeitsrecht neue Regelungen 2021 Corona-Impfflicht Kurzarbeit mobiles Arbeiten

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Dr Michaela Felisiak T   +49 89 35065-1127 E   Michaela.Felisiak@advant-beiten.com
Dr Erik Schmid T   +49 89 35065-1127 E   Erik.Schmid@advant-beiten.com