No Compensation after Holiday Trips to Risk Countries
In August 2020, in the middle of the summer holidays and the peak travel season, the authorities again extended the list of international risk areas. What does this mean from a labour law perspective? Is quarantine mandatory for travellers returning home and who bears the costs? Is there a difference between mandatory business travel and private travel? What possibilities do employers have to become active prior to a trip?
Question about holiday destination exceptionally permitted
In ordinary times, the employer may not ask his employees about their travel plans for holidays. During the corona pandemic something else applies: This question is now permitted. This is because the employer has a duty of care which also affects the health of colleagues and customers. In the current situation, this duty is given higher priority than the personal rights of employees. Because in case of doubt, employers must take organisational measures in case of a quarantine situation of employees, for instance, to maintain the operations and redistribute tasks. Hence, the question can be asked in the run-up to the journey (possibly combined with a reference to the corresponding consequences for the entitlement to compensation). Employees must truthfully inform the employer of their travel destination. However, the employer cannot prohibit the journey.
No paid leave for quarantine on return from risk area
Travellers to risk areas must have a corona test carried out at their destination or at the latest when entering Germany. Unless a negative test result is obtained, they have to go into a 14-day domestic quarantine on the basis of the regulation on quarantine measures adopted at Federal State level. If employees cannot work during this quarantine, for instance because it is not possible to work in the home office, the returnees do not receive any compensation from the employer during the quarantine period, provided that the trip was a private holiday trip. In this respect, the principle "no work, no pay" applies. Exceptions may exist in accordance with the regulation of the so-called temporary prevention to perform work according to section 616 German Civil Code (BGB) or the claim for compensation according to section 56 of the German Infection Protection Act (IfSG). In this case, the applicability of section 616 BGB must not be excluded under the terms of the employment contract. Furthermore, the employee must not have culpably caused the prevention from work. The regulations of the German Act on Continued Payment of Remuneration (EFZG) are the benchmark for this.
Fault on one's own part
From this follows: If it is known before the start of the journey that the destination is a risk area classified by the Robert Koch Institute (RKI), there is no claim to compensation under section 616 BGB. The same applies according to the IfSG, as section 56 IfSG also depends on whether the employee deliberately caused the quarantine situation or could have avoided it him/herself. Even under the EFZG, if the employee falls ill with the corona virus during the holiday, the entitlement to continued payment of compensation for the period after his/her return home does not apply. Travel to a known risk area is considered to be "fault on one's own part".
The situation is different if the RKI does not declare the destination a risk area until during the trip. Insofar as section 616 BGB is applicable, the claim for compensation continues to exist if a negative corona test result is available within a few days. It has not been conclusively clarified, though, to what extent state compensation under section 56 IfSG is applicable in these cases. If employees fall ill in such a situation, the EFZG applies and employees are generally entitled to continued compensation in the event of illness.
A special feature applies to travel restrictions: If employees are stranded abroad and are therefore unable to start work in time, their entitlement to compensation also lapses. In this respect, fault is not of relevance. The "travel risk" is generally borne by the employee.
Mandatory business trips abroad
If you are travelling on business to a risk area, there are a number of special features that apply before you start your trip and after you return. It is advisable to inform yourself about the risk situation in the destination country on the website of the Federal Foreign Office. Even before departure, the employer has an increased duty of care with regard to the decision to be made between the necessity of the trip and the health protection of the employee. If the business trip is absolutely necessary, the employer must take special protective measures, e.g. instruction regarding hygiene and safety regulations; provision of disinfectants, gloves and mouth protection. After returning from the risk area and the subsequent 14-day home quarantine, the employee's entitlement to compensation continues - unlike during the holiday trip - if the employee is unable to carry out his/her work from the home office. In this case the employee is not at fault, neither according to section 616 BGB nor according to section 56 IfSG.
Become active to avoid a quarantine period without compensation
Where home quarantine is necessary due to returning from holiday in a risk area, employers and employees should make arrangements for flexible working methods such as home office or mobile working during this period. Employees should already take the technical equipment home on the last working day before the start of the holiday in order to be able to work in the home office after the trip if necessary. The employer should also point out to the employee in advance of the trip that there is no entitlement to compensation if the employee goes on holiday to a risk area with subsequent quarantine. This is particularly important if employees cannot carry out their work in the home office.
Employers should also expressly point out to their employees that returning to work without a negative corona test is prohibited. Employees should not return to work until another test with a negative result has been carried out after 7-10 days and the employer has been notified - or the quarantine period has expired. In general, the employer has no duties with regard to the performance of the corona test.
Taking the works council into account
If there is a works council established, it must be involved in travel-return arrangements. This is because both the risk assessment pursuant to section 87 (1) no. 7 German Works Constitution Act (BetrVG) and the occupational health and safety measures to be taken (section 87 (1) no. 7 BetrVG) are subject to co-determination by the works council. In works agreements, the parties can agree on various basic provisions, for instance on mobile working, return concepts and other protective measures. Which measures the employer can implement and order at short notice even without the works council depends on the operatinal specifics of the company. In the case of systemically relevant companies in particular, unilateral orders should be possible, at least temporarily, to protect health without the involvement of the works council. It is acknowledged, for instance, that employers can order health inspections on the basis of the right of direction pursuant to section 106 German Industrial Code (GewO) (Federal Labour Court of 12 August 1999 - 2 AZR 55/99). Still, the employer should actively approach the works council and conclude appropriate regulations in the form of a company agreement with a corresponding hygiene concept.
Note: The article was published in a similar form by LTO on 17 August 2020.