Coronavirus (COVID-19) - employment issues in Germany

In Germany, the number of people that are being tested positive is ever increasing. German authorities believe that the further spread of the Coronavirus (COVID-19) is no longer under control.

Employers should consider (preventive) measures in the workplace and should prepare emergency plans that can be activated on short notice if required by a rapidly evolving situation.

Set out below are the key considerations for employers.

Employer’s duty of care towards employees

Employers have a duty of care towards employees. This includes the obligation to ensure health and safety of employees in the workplace. They must take appropriate precautionary and protective measures to prevent illness amongst their employees.

Regarding the Coronavirus, employers may consider taking the following precautionary steps:

• Provide information regarding the Coronavirus in order to ensure that employees are aware of the signs and symptoms of Coronavirus and what they can do in order to reduce risks.
• Provide hand sanitizer and encourage staff to be extra-vigilant with washing hands, using and disposing of tissues, etc. and ensure regular anti-bacterial cleaning of surfaces and equipment.
• Ensure that staff contact details and emergency contact details are up to date.
• Monitor the government travel guidance and restrict non-essential travels to known affected areas in line with that guidance.
• Consider whether employees recently returning from known affected areas should be advised not to come into the office and to work remotely for up to 14 days.
• Ensure that employees are set up for an extended period of remote working and are aware of any restrictions, for example not printing confidential documents at home.

Working from home

Employees have a legal right to come to work and to perform their services at the workplace. Unless home office arrangements are in place, employers can in principle not request that employees work from home.

If there is the suspicion of a possible infection of an employee with the Coronavirus or the situation evolves in a way that the government advises not to use public transportation or to stay at home, the employer could, as an exception to the rule, request that employees work from home to the extent possible and reasonable. The employer should offer assistance and support to employees in order to ensure that they have the resources required, especially a computer, printer and the possibility to log in to the digital work environment, for working from home.

Entitlement to remuneration

Do employees remain entitled to their remuneration when they are unable to work?

The following scenarios must be distinguished:

• Employees who are sent home by their employer in order to avoid a further spread of the Coronavirus continue to receive their remuneration unless they unreasonably refuse to provide any work from home.
• Employees who fall ill with the Coronavirus are, also entitled to remuneration according to the provisions of the Continued Remuneration Act (Entgeltfortzahlungsgesetz).
• Employees who did not fall ill but were quarantined, for example as they returned from an affected area, are not entitled to remuneration for the term of quarantine. They, however, receive a compensation in the amount of their net income according to the Act for the Prevention and Controlling of Infectious Diseases (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten) for six weeks (and thereafter a lower amount). The compensation is paid out by the employer who is reimbursed by the competent health department.
• If employees stay at home for a relatively short period of time in order to care for their child that fell ill with the Coronavirus, it depends on the provisions of the employment contract whether they are entitled to remuneration. This also applies if children must stay at home as the Kindergarten is closed. Regarding the latter scenario, however, stricter requirements than in case of illness apply and parents must explore whether other care options exist. If employees must stay at home for a longer period than one week, they should try to find a mutual solution with their employer that could include taking paid or unpaid leave.
• Finally, if employees simply decide on their own to stay at home to reduce their personal risk to be infected without approval of their employer and without a reasonable suspicion of a concrete infection risk, they would violate their obligations under the employment contract and employment sanctions (reaching from a warning letter to terminations in severe cases) could be imposed on them. They would not be entitled to remuneration.

Medical tests

Employers can in general not request that employees are medically tested unless there is the necessity to perform this test or to be otherwise informed of the medical situation of the employee due to the specific nature of the employee’s job. Accordingly, an employer cannot sanction an employee who refused to get medically tested. The employer can, however, send the employee home.

Short-time work

If companies are impacted by the Coronavirus, e.g. as that they must reduce their production due to delayed delivery of suppliers or due to protective measures of the government, they could consider implementing short-term work (Kurzarbeit) for their employees. Employees whose salaries are reduced could then benefit from short-term allowances (Kurzarbeitergeld) paid by the government which the employer must apply for. See here for further information (only in German)

Further information to help employers deal with the outbreak of the coronavirus across our international network available here