Are German employers liable when employees fall ill with COVID-19?

To combat COVID-19, companies all over the world have shuttered operations, required employees to work remotely and limited their services. Besides their financial risks, employers face the possibility of their employees contracting the coronavirus at work and being held accountable for not putting proper protections in place.

From a criminal law perspective, it should first be noted that there is a so-called ordinary life risk, people are exposed to a multitude of risks in social interaction, but also in the effects of the environment and nature, which they cannot completely avoid even with the greatest efforts on their own part and on the part of others. These risks cannot and should not be passed on to others by general liability and criminal law, so that any resulting damage is the responsibility of the individual.

Losses arising from the life risk are part of self-provision. In principle, this can also include one’s own hygiene. Likewise, catching a flu or a simple cold at work is likely to be an ordinary life risk. With regard to COVID-19, however, it should be noted that there are legal requirements for the employer due to the sometimes severe course of the illness and the high risk of infection. Therefore, the German Federal Ministry of Labour and Social Affairs issued the SARS-CoV-2 Occupational Safety Standard on 16 April 2020, which all employers must comply with.

The failure to comply with hygiene measures might lead to the employer’s liability under German criminal law. First of all, depending on the case, intentional or negligent bodily injury or in some cases, even manslaughter through omission will come into question. With regard to both offences, however, for criminal courts to find managing directors guilty, it would have to be proven that the omission of specific hygiene measures has been causal for the COVID-19 infection. In other words, if the employer failed to adhere to the hygiene regulations, this very circumstance must have lead to an employee’s infection. In the case of infections, however, it will be extremely difficult to determine where a person has been infected. In the so-called leather spray case ruled by the German Federal Court of Justice (Bundesgerichtshof) many years ago, some users of a certain leather impregnation spray suffered considerable health impairments. It could not be scientifically proven, though, which specific ingredient was responsible for the injuries. In contrast to COVID-19 infections, however, in the leather spray case, it was at least possible to determine that the leather spray was the reason for the health impairments. In this respect, the Federal Court of Justice judges stated that, for the determination of causality, it would be sufficient if all other possible causes of damage could be excluded.

Usually, it is not possible to determine with certainty where a COVID-19 infected person has contracted the virus. Has it happened at work, at the local supermarket or through other family members? Even if it can be assumed with high probability that the affected have become infected at work, this does not mean that a causality can be concluded. Only a high probability will not be sufficient to assume causality. Even if viruses can be detected on objects in the office, this fact alone will not be sufficient to prove criminal liability. It will also be necessary to prove that it was precisely the omission of hygiene measures that has led to the infection, which is almost impossible to do. For all practical purposes, criminal liability for intentional or negligent bodily injury is therefore near to excluded.

However, the federal states in Germany have each issued corona regulations that provide for certain hygiene measures to be adhered to. If employers fail to comply with these specific hygiene regulations, they commit a criminal offence pursuant to section 75(1) or (4) of the Infection Protection Act (Infektionsschutzgesetz). This provision does not require for any causality to be proven for the emergence of an infection.

From an employment law perspective it can be said that employers in Germany are legally obliged to take the necessary protective measures for their employees (section 618(1) of the German Civil Code and section 3 of the Act on the Implementation of Measures of Occupational Safety and Health to Encourage Improvements in the Safety and Health Protection of Workers at Work). The employer has to take into account not only the well being and justified interests of their employees in order to ensure that no harm is caused, but also has to respect the employees' personal rights. In addition to providing detailed information about the risk of infection with the coronavirus and the correct hygienic procedures, the employer must ensure that the rules for occupational health and safety issued by the Federal Ministry of Labour are implemented.

However, it is not sufficient to merely encourage employees to follow these health regulations. Employers must also establish the necessary requirements in the working environment. This includes adapting the workplaces to the minimum distance of 1.5 meters, as well as providing disinfectants, hand soaps and other essential hygiene supplies. The employer must further ensure that safety distances are maintained also in areas where several employees usually gather at the same time (eg staff kitchen and toilets).

Also, the employer must exercise particular care for those employees who belong to the risk group. In Germany, people over 60 and those with previous medical conditions are considered to be particularly endangered. In addition, corona protection measures must not place an unreasonable burden on employees.

If the employer violates these obligations and an employee becomes infected with the virus as a result of this, the employee may be entitled to claim for indemnification.

In the case of the employer disregarding the rules, the employee can also turn to the works council. The works council not only ensures that the laws are observed in the company, but also has a genuine right of co-determination in the area of health protection according to section 87(1) No. 7 of the Works Constitution Act. It can therefore negotiate works agreements with the employer, which can then entail legal claims.

Finally, it is debatable whether or not employees can insist on home office arrangements. At present, such right does not exist, as is confirmed by the fact that the Ministry of Labour is contemplating a draft bill to introduce such a right for future purposes. It is debatable, however, whether an employee can already ask for a home office arrangement for at least the period in which the employer is unable to meet the relevant health & safety requirements as above. Given that the employee is, in principle, even entitled not to appear at the workplace in such a scenario, it seems only consequential that home office is the less severe response.

Find out more about the return to work guidelines in Germany and legal issues to consider on return to the workplace.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.