The coronavirus continues to spread: The World Health Organization (WHO) has declared the virus outbreak a pandemic. A pandemic is an unrestricted outbreak of disease that is capable of causing serious illness and spreading easily from person to person. Accordingly, Bavaria and Saarland have decid-ed in the night of 13 March 2020 to close all schools and day-care centres from Monday 16 March 2020 until the beginning of the Easter break on 4 April 2020. It is to be expected that the remaining federal states will follow this example. Furthermore, almost all major events have been cancelled. Infected employees or those who are suspected of being infected with the coronavirus are in quarantine due to official orders.
In addition to our blog post “The Coronavirus and the Workplace”, we would like to give you an overview of further important labour and em-ployment law issues concerning the obligation to work and pay with regard to childcare, the possibilities of compensation according to the Infection Protection Act (Infektionsschutzgesetz – IfSG) as well as current measures at federal and state level (as of 13 March 2020). https://zl-legal.de/the-coronavirus-and-the-workplace/?lang=en
When assessing the employee’s obligation to perform the work owed and the corresponding employer’s obligation to continue to pay remuneration, a distinction must be made between the following case groups:
1.1 Child sick – childcare facility open
Employees have the right to remain away from work if their children under the age of twelve are sick and under their care. Legally insured employees are entitled to child sickness benefit for these children according to sec. 45 of the German Social Code, Book V (Sozialgesetzbuch Fünftes Buch – SGB V) for a maximum of ten working days per year, single parents for a maximum of 20 working days, provided the children live in the household. If there are several children, the entitlement is limited to 25 working days per calendar year, and for single parents to 50 working days per calendar year.
If there is no entitlement to child sick-ness benefit, a claim for release from work and continued payment of remu-neration may arise from sec. 616 of the German Civil Code for a relatively insig-nificant period of time, which generally does not exceed five to ten days. Ac-cording to this, the employee in deviation from the principle of “no work, no pay” – retains his claim to remuneration if he is prevented from performing the service for a relatively insignificant period of time by a reason lying within his person without his fault. The sickness of children living in the same household as the employee requiring nursing care constitutes such a reason in the person of the employee.
If both parents are employed, only one of them has the right to be released from work and to continue to receive remuneration, as care by both is usually not necessary. Who takes over the care is left to the parents. However, if they are employed by the same employer, they must take their interests into account. If only one parent is employed, the other parent has to take over the care. The necessity of the care must be proven by a medical certificate.
In case the child is suffering from coro-navirus or there is a concrete suspicion of such an infection, the employer must be informed immediately. In this case, the employer will regularly have to consider working in the home office (if possible) or releasing the employee/parent from work due to his duty of care and protection towards the other employees (see no. 3 and no. 4 of our blogpost of 09 March 2020).
1.2 Child healthy – childcare facility closed
The temporary closure of a childcare facility is only in exceptional cases a reason for the employee’s right to remain absent from work and to continue to receive remuneration. In this respect, the following distinction must be made:
(1) In case there is an agreement according to which the employee is entitled to work from home or the employer can unilaterally order the employee to work from home, the employee is still obliged to perform his work. The employee’s right to refuse performance is then excluded, and the remuneration is to be con-tinued as normal.
(2) If no home office can be or-dered/requested, the following differentiation must be made:
(a) First of all, the question must be clarified whether the child is in need of care at all (especially because of his or her age). This will not be assumed in the case of children who are older than twelve years. In some cases, it is assumed that the age limit is even lower.
(b) It must then be clarified whether the child can be cared for by a third party (e.g. spouse, older siblings, children, grandparents, possibly even friends and neighbours). Part-time care or the use of company facilities and childcare services should also be considered.
(c) In any case, the possibilities of working from home must also be discussed with the employee, since older chil-dren in particular will not require round-the-clock care.
The employee is entitled to continued payment of remuneration in this case (no work from home possible), at most if it is absolutely necessary for him/her to provide care personally. Such a claim to continued remuneration is limited to a few days per year.
1.3 Child healthy, but is kept at home due to parents’ fear of infection – child-care facility opened
In this case, there will be no entitlement to release from work, nor will the employer be obliged to continue to pay remuneration. An exception can only be considered if there are sufficiently concrete indications that the childcare facility remains culpably inactive despite infection of a child with the coronavirus or despite concrete and obvious suspicions.
1.4 Child healthy but in quarantine – childcare facility open
This case is unlikely to occur in practice: It can be assumed that all persons living in the affected household will be quarantined. Otherwise the measure would be ineffective. The question of whether the employee is entitled to refuse to perform work is essentially based on the criteria described in section 1.2.
2. Administrative measures in accordance with the Infection Protection Act (Infek-tionsschutzgesetz – IfSG)
If the competent health authorities order measures in accordance with the IfSG (e.g. quarantine sec. 30, occupational work-ban sec. 31), employees receive compensation from the employer in accordance with sec. 56 IfSG for the duration of the employment relationship – but for no longer than six weeks. For the first six weeks, the compensation is based on the loss of earnings. From the beginning of the seventh week, it is granted in the amount of the sickness benefit pursuant to sec. 47 para. 1 Social Security Code Book 5 (SGB V), provided that the loss of earnings does not exceed the annual earnings limit for compulsory health insurance. Loss of earnings shall be deemed to be the remuneration to which the employee is entitled to a reasonable extent for the regular working time applicable to him/her after deduction of taxes and contributions to social security and employment promotion or cor-responding social security expenses.
The compensation is to be paid by the employer on behalf of the competent authority for the duration of the employment relationship, but for no longer than six weeks. The employer shall be reimbursed by the competent authority on request.
However, the employee’s claim for compensation – and thus also the employer’s claim for reimbursement – is excluded if the employee does not suffer any loss of remuneration. This is the case if the employer undertakes to continue to pay remuneration on the basis of an individual contractual, col-lective or legal basis.
3. Decree of the Bavarian State Ministry of Health and Care of 7 March 2020
According to a decree issued by the Bavarian State Ministry last Saturday, schoolchildren and smaller children may not go to school or their childcare facility for 14 days after their return from South Tyrol or other risky situations. This order also shows that employees have a duty to provide information as to whether they have been in a risk area for the last 14 days (see No. 2 of our blogpost of 09 March 2020). The employer is obliged to protect his other employee from infection. He will therefore be allowed and even obliged to question his employees regarding such stays.
The federal and state catalogue of measures against the coronavirus presented from Thursday (12 March 2020) explicitly includes the possibility of closing schools and childcare facilities across the board as an option for action. Bavaria has made use of this option. All schools will be closed from 16 March 2020 until the beginning of the Easter break on 04 April 2020. Day-care facilities for children will also be closed from 16 March 2020 until 03 April 2020 inclusive.
4. Eased requirements for short-time work compensation
Last Wednesday, the federal cabinet launched a decree authorization for the federal government to lower the hurdles for short-time work. According to the decree, wage cost subsidies will be available as soon as ten percent of the workforce is affected by lost work.
In addition to the short-time work allowance, the Federal Employment Agency will also pay the social insurance contributions that would otherwise have to be borne by the employer in the event of short-time work. Further-more, the short-time allowance is also to be paid for a limited period to temporary and contract workers.
The new regulations will already come into force in the first half of April 2020.
5. Certificate of incapacity for work via telephone
In addition, the National Association of Statutory Health Insurance Physicians (KBV) and the central association of the statutory health insurance funds agreed last Monday on the following special regulation for issuing certificates of incapacity to work: Patients with minor sicknesses of the upper respiratory system can be issued with a certificate of incapacity to work for a maximum of seven days after consulting their doctor by telephone. A personal visit to the doctor’s surgery is not necessary for this. The regulation applies immediately and initially for four weeks. This is intended to relieve both doctors and patients and to contain the spread of the virus. The high evidential value of certificates of incapacity to work is not to be affected by this.
The statements in our blogposts are of course neither to be understood as fina nor as generally valid. In particular, a different assessment may be required due to the applicable employmen contract, company and collective bargaining regulations as well as due to personal and company circumstances.