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Corona Labour Law ABC

A great deal is being written, talked and coughed about the coronavirus "SARS-CoV-2". Nevertheless, much remains unclear. The disease is spreading and the hysteria in addition is spreading even faster.

Dear Readers,

Therefore my blog about the "coronavirus-SARS-CoV-2" from a labour law perspective in 26 (actually without X and without Y in 24) letters:


A like "Arbeitspflicht" (work duty): Rendering the work performance is the main duty of the employee in an employment relationship. This also applies in times of the coronavirus. The employee is obliged to perform his/her work, unless he/she is incapacitated for work due to illness or is in quarantine officially ordered.

B like "Beschäftigtendatenschutz" (employee data protection): Employers may only ask for and process personal data of their employees if this is "necessary for the implementation of the employment relationship". In principle, this does not include the question, where the employees spent their last holidays (risk areas of the coronavirus) or for symptoms of the coronavirus. In case of epidemics such as the coronavirus, however, there could be an exception, in particular for the protection of the personnel, for the avoidance of further infections and for the maintenance of business operations. As a precautionary measure, the consent of the employees questioned should be obtained.

C like coronavirus: Type of virus which infects vertebrate animals and causes colds among human beings which can be harmless but can also lead to death. The coronavirus will have far-reaching implications for economy and employment.

D like "Dienstreise" (business journey): Business journeys are part of the work duty. The employer can order specific business journeys by virtue of his/her right to give instructions, in any case, if travel is agreed upon in the employment agreement or if travel is typically associated with the profession. In any case, as long as there are no travel warnings of the Federal Foreign Office for certain regions, also business journeys in "coronavirus areas" can be ordered, insofar as this is still consistent with the exercise of reasonable discretion, as a matter of fact.

E like "Entgeltfortzahlung" (continued remuneration): In labour law, the principle "no wage without work" applies. There are exceptions to this, for example during vacation or in case of illness-related incapacity to work. An entitlement to continued payment of the remuneration in case of illness-related incapacity to work, however, does only exist if the employee is incapacitated for work exclusively as a consequence of a disease and if he/she is not at fault with regard to the disease. An entitlement to continued remuneration, however, does not exist if employees are in good health, they do not arrive at the workplace for fear of an infection or were officially quarantined due to a contact with a sick person.

F like "Fürsorgepflicht" (duty of care): The employer has a duty of care. This means that the employer must take all necessary and appropriate measures for the protection of the health of his/her employees. The duty of care can be exercised through the right to give instructions. Employers are entitled and also obliged, for example, to prohibit business journeys to certain regions, to keep employees, who return from risk areas, away from staff for a certain time, to cancel or to prohibit events with a higher number of persons or to take other measures, such as to provide disinfectants.

G like "Gesundheitsschutz" (health protection): Employers are entitled to order the adoption of measures for health protection. In accordance with the principles of proportionality, it can be ordered to disinfect the hands regularly, to wear a face mask or disposable gloves and change them regularly.

H like "home office": In a large number of enterprises and companies, employees are currently working from home increasingly. Insofar as home office has not been regulated up to now in an employment agreement or in a works agreement, the employees are not entitled to work from home unilaterally. If an employee works from home without arranging this with the employer, he/she has breached a duty. On the other hand, the employer is also not entitled unilaterally to order work from home without a specific regulation. As far as possible, however, it is certainly a meaningful opportunity in times of the coronavirus to work from home.

I like "Impfzwang" (compulsory vaccination): There is currently no vaccine for the coronavirus. Even if there was a vaccine, the employer could not order a compulsory vaccination unilaterally by virtue of the right to give instructions. This would be disproportionate and would not be consistent with the exercise of reasonable discretion and would violate the self-determination rights concerning the health of the employees.

J like "Jobcenter" (job centre): The first notifications are being received that also job centres are closed due to the coronavirus. However, open job centres can assist employees and employers with the application for and the implementation of short-time work.

K like "Kurzarbeit" (short-time work): The absence of employees due to the infection with the coronavirus or due to quarantine measures as well as probable delivery problems with products and services from risk areas will lead to a (severe) restriction of the operations process also in Germany. These problems can be addressed by the instrument of short-time work, as it is currently regulated, but also as it will be adjusted by politics. The temporary short-time work is intended to compensate employment slumps and to preserve jobs.

L like "Leistungsverweigerungsrecht" (right to refuse performance): Also in the employment relationship, a general right to refuse performance exists if the interests of the employer in the performance of an activity are to be considered lower than the duty of care of the employer. In the event of a business journey to a coronavirus risk area, for example, the employer has to weigh up the integrity of life and limb of the employee on the one hand against the necessity of the business journey, the possibility to postpone the business journey or the possibility of a meeting at a neutral location on the other hand. For example, in the event of a business journey to a risk area, it could be postponed or a meeting at a neutral location would be possible if the business journey is not absolutely necessary.

M like "Mitteilungspflicht" (reporting obligation): In order to be able to comply with the duty of care in times of the coronavirus, on the one hand employers are entitled to ask, on the other hand employees are obliged to provide information on whether they have been in risk areas over the last 14 days and/or whether they have symptoms of the coronavirus.

N like "Nacharbeit" (rework): Work performance is a so-called "fixed obligation". This means that work has to be performed at the working hours specified by the employer respectively. Work cannot be performed at a later date if it has not been performed by the employee during working hours for fear of an infection.

O like "Organisationspflichten" (organizational duties): The employer has to organize protective measures against the coronavirus and an infection of employees based on the duty of care. In practice, employers often order to cancel not necessary business journeys and not to visit events with a larger number of persons, it is offered to work from home to a greater extent, disinfectants and other protective measures are provided free of charge.

P like "Private Reisen" (private travels): The employer is not entitled to prohibit employees from private travels in their leisure time. Even travels to corona risk areas cannot be prohibited. However, the employer is entitled to order a "quarantine" after their return or to keep the employee away from the company and, for example, to have them work from home. If employees deliberately spend their vacation in a coronavirus risk area and after that do not comply with the employer´s instruction to stay away from the company during the incubation period, he can be held liable for damages.

Q like "Quarantäne" (quarantine): Persons who are not ill, but who have stayed in risk areas or had contact with sick persons, are currently put into quarantine by official orders. During the period of quarantine, employees are unable to perform any or only very limited work. Hence, there is no entitlement to remuneration. This is not a case of continued remuneration. If the quarantine is accompanied by a ban on professional activity, the employee is entitled to compensation from the employer. The employer, for his part, can assert a claim for reimbursement against the authorities.

R like "Rückkehr aus Risikogebiet" (return from a risk area): Based on the employer's right to give instructions and his duty of care, the employer is entitled to prohibit employees who have last been in risk areas privately or on business from working at the workplace for an initial period (regularly 14

days in the case of coronavirus). The employee can either work from home (home office) or be released from work by the employer. The employee's claim to remuneration remains valid.

S like "Schadensersatz" (compensation): Employees who act contrary to the employer's instructions and cause damage to the employer may be liable to pay compensation.

T like "Teneriffa" (Tenerife): Tenerife has drawn attention to itself through the hotel quarantine in the course of the coronavirus. If employees on holiday are quarantined by the local authorities and do not show up at work or do not show up in time after the end of the holidays, they must inform the employer as soon as possible. In this case, the employer is not obliged to pay remuneration.

U like "Überstunden" (overtime): Even during coronavirus, the employer may instruct overtime to a reasonable extent. This also applies in particular if, due to the coronavirus, other employees are incapacitated for work due to illness or are in quarantine and the workload of the remaining employees increases accordingly.

V like "Versetzung" (transfer): The employer is entitled, by virtue of the right to give instructions, to transfer his employees with regard to the content, place and time of the work performance. The right to give instructions can be specified in the employment contract through transfer clauses. Temporary changes to the content, place and time of work performance, for instance during coronavirus, in order to prevent infection among employees and the spread of the virus, may also be a transfer. A transfer is at hand and the works council would have to be involved within the scope of personnel measures pursuant to section

99 German Works Constitution Act (BetrVG) if the transfer is expected to exceed the duration of one month, or if the transfer is associated with significant changes in circumstances regardless of the period.

W like "WHO": The World Health Organization (WHO) constantly publishes up-to-date information on the coronavirus. Employers are entitled to change their instructions according to current events.

Z like "zum Schluss" (at last): Best wishes from the Labour & Employment Law Practice Group and stay healthy!

Dr. Erik Schmid




Experts

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Dr Erik Schmid

Rechtsanwalt, Licensed Specialist for Labour Law

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