09.11.2020

Whoever Does Not Comply with the Rules of the Game (Corona Hygiene Concept) ...

In football, infringements of the rules of the game, such as fouls, unsporting behaviour or assaults, are punished with a yellow or red card and thus a sending-off. "Go to Jail. Go directly to Jail. Do not pass GO. Do not collect DM 4000" is how Monopoly treats players who draw a jail event card. "Hasta la vista, baby!" says Arnold Schwarzenegger in Terminator 2 to his opponents who break the rules. Violations in traffic are punished with fines, points in Flensburg and driving driving disqualification.

Dear Readers,

And how can employers react in case of violations of the corona hygiene concept by employees? Showing employees yellow and red cards, putting them in jail, putting them in the hands of the Terminator or taking their driving licence?

Hygiene Concept - Employer's Right to Give Instructions

According to Section 106 Sentence 1 German Trade, Commerce and Industry Regulation Act (GewO), employers have the right to determine the content, place and time of work performance at their own reasonable discretion. This is true at least if these working conditions are not laid down in an employment agreement, works agreement, collective agreement or statutory regulations. The right to give instructions entitles the employer to unilaterally specify the employee's obligation to perform by issuing instructions. Pursuant to the provision under Section 106 Sentence 2 GewO, the right to give instructions also extends to the order and conduct of the employee in the company.

Along with the right to give instructions, the employer also has a duty of care and to avert dangers to its employees.

Insofar as there are no other relevant regulations for the employment relationship, the right to give instructions thus also covers, for instance, the issuing of smoking bans, the carrying out of entrance controls or the wearing of service or protective clothing. Thus the implementation of the corona hygiene concept is also covered by the right to give instructions. The employer is entitled to unilaterally order the wearing of protective masks, the disinfection of hands, the observance of physical distancing, the prohibition of physical meetings, etc.

Violations of the Hygiene Concept

Employees who violate the corona hygiene concept set up by the employer are acting in breach of their duties. Employers can sanction any violations by means of the usual instruments of labour law, such as

once again expressly order compliance with the hygiene concept,
issue of a warning letter/ letters or
ordinary termination for conduct and/or extraordinary termination.

As the employee, contrary to the hygiene concept instructed by the employer, comes in, for instance, not wearing a protective mask and, thus, in a way that is not fit for work and not offering its work performance in accordance with the contract, the employer would also be entitled to release the employee for this period and not to pay the remuneration and thus show the yellow card.

Conduct Outside of Work

"You should not mix business with pleasure". How employees behave in their free time is basically up to them. An employee's misconduct outside work can only have consequences for the employment relationship if it has an effect on the employment relationship or if a reference to the employer is established.

In the case heard by the Osnabrück Labour Court (File No.: 2 Ca 143/20) the employer had issued an extraordinary termination of an employment relationship. The employee concerned posted a photo on his private WhatsApp profile entitled "Quarantine at my place". The photo showed the employee with five other men close together playing cards. The photo was taken during the employee's spare time. Conclusions about the employer could not be drawn from the photo.

No decision has been taken in this case. In such cases further cooperation is often not acceptable for the employer. Employers must assume that such employees do not take the specified corona protection measures seriously and show no willingness to comply with them. The employer must also assume that the employee may also disregard operational protective measures and thus risk the health of colleagues. Resistance to corona measures outside the employment relationship nevertheless remains a grey area and it depends on the individual case. A sanction will be possible in particular if a reference to the employer can be established from the photo, the post or the account.

Stay healthy and warm (labour law) greetings from Munich

Yours, Dr. Erik Schmid