Start-up Venture Capital - Labour law amid the Coronavirus crisis
Coronavirus affects the whole world, including the world of work and labour law. The crisis does not stop at start-ups either. The disease is spreading rapidly and with it questions around labour law. Much remains unclear. We put together the most important aspects about Corona for start-ups:
Service and consideration
DUTY TO WORK: Performing work is the employee's key duty of the employment relationship. This holds true also in times of coronavirus. Unless the employee is unable to work due to illness or is in quarantine by order of the authorities, he is obliged to perform work.
RIGHT to refuse performance: Also in an employment relationship employees have a general right to refuse performance if the start-up's interests in the performance of an activity must be considered less important than the start-up's duty of care. For example, in the case of a business trip to an area with a coronavirus risk, the physical integrity of the employee's life and limb on the one hand, and the necessity of the business trip, the possibility of postponing the business trip, or the possibility of a meeting at a neutral location on the other hand must be weighed against each other. The recently tightened federal and state regulations should be examined and observed in each case.
BUSINESS TRIPS: Business trips are part of the duty to work, also in start-ups. The employer may order specific business trips by virtue of his right to give instructions, at least if the travel activity is covered by the employment contract or if a travel activity is typically related to the performed activity. Refusals can lead to warnings and dismissals. At least as long as there are no travel warnings from the Federal Foreign Office for certain regions, business trips may be ordered, provided that this is otherwise reasonable. The travel warnings are currently comprehensive. In many start-ups, business trips are currently prohibited.
continued remuneration: In labour law, the principle of "no wage without work" applies. There are exceptions to this rule, for example during holidays or in the event of incapacity to work due to illness. However, an entitlement to continued payment of remuneration in the event of incapacity to work due to illness only exists if the employee is incapable of work solely as a result of illness, and if the employee is not at fault with regard to the illness. However, there is no entitlement to continued payment of remuneration if employees are healthy and do not appear at work for fear of infection.
Corona at the workplace?
HEALTH PROTECTION: Employers are entitled to order health protection measures. In accordance with the principles of proportionality, it is possible to order regular hand disinfection, the wearing and regular changing of a face mask or disposable gloves.
QUESTIONING ON disease SYMPTOMS: Start-ups may only ask for and process personal data of their employees if this is necessary for "carrying out the employment relationship". In principle, this does not include the question of where employees spent their last holiday (areas affected by coronavirus) or after symptoms of coronavirus disease. However, in the case spreading diseases such as the coronavirus, an exception could be made, in particular to protect the rest of the workforce, to prevent further infection and to maintain business operations. Purely as a precautionary measure, the consent of the interviewed employees should be obtained.
temperature CHECKS: A mandatory temperature check by the start-up without the consent of the employees is an inadmissible violation of the right to privacy. It is even more serious than the question of symptoms of disease, since the employee is denied the "right to lie" due to the right to give instructions.
COMPULSORY VACCINATION: There is currently no vaccine for the coronavirus. Even if there were a possible vaccination, the start-up could not unilaterally order a compulsory vaccination by right to give instructions. This would be disproportionate and would not appear just, and would violate the employees' rights to self-determination with regard to their health.
Countermeasures by the start-up
DUTY of care: The start-up has a duty of care. This means that it must do everything necessary and appropriate to protect the health of its employees. The duty of care can be exercised through the right to give instructions. Employers are entitled and also obliged to prohibit for example business trips to certain regions, to keep employees returning from affected areas away from the workforce for a certain period of time, to cancel or prohibit events with a large number of people or to take other measures, such as providing disinfectant.
duties to ORGANIse: The employer must organise protective measures against the coronavirus and infection of employees based on the duty of care. In practice, employers often order employees to cancel unnecessary business trips and not to attend events with a larger number of people. Further, companies offer work from home on a larger scale and provide disinfectants and other protective measures free of charge.
work from HOME: Start-ups, now also a large number of other businesses and companies, currently work a lot from home. To an extent that there are no yet regulations in the employment contract or in a company agreement on working from home, employees are not entitled to unilaterally decide to work from home. If the employee works from home without first consulting the employer, it is a breach of duty. On the other hand, neither the employer is entitled to unilaterally order home office without a specific regulation. As far as possible, however, in times of the coronavirus it is a reasonable option to work from home.
Start-ups in the crisis
INSTRUMENTS: As labour law instruments in a temporary crisis, start-ups can use short-time work and immediately save liquidity, make use of fluctuation and decide to not fill vacant jobs, use freelancers or temporary workers, compensate for lack of orders or employment through flexible working time models, arrange holiday shutdowns, carry out staff reductions, or bring employees on board and jointly agree to defer, suspend or reduce remuneration.
SHORT-time WORK: Shortfalls of employees due to coronavirus infections and quarantine measures, as well as the likely supply problems with products and services from affected areas and official restrictions by authorities have already led to (strongly) restricted business operations in Germany. These problems can be countered with the instrument of short-time work, which political authorities have been quick to adjust. Temporary short-time work serves to compensate for job losses and preserve jobs, and immediately saves liquidity.
Emergency aid programmes by federal and state governments
THE FEDERAL GOVERNMENT AND THE STATES have established emergency aid programmes for enterprises threatened by economic circumstances endangering their existence as a result of the Coronavirus crisis.
An existence-threatening economic situation must be announced under oath and, upon request, proven by documents. Still, this can be the much-needed financial rescue package for many start-ups.
Dr Michaela Felisiak
Dr Erik Schmid
Rechtsanwalt, Licensed Specialist for Labour Law