The Coronavirus and the Workplace

At present, a considerable spread of the respiratory disease COVID-19, which is caused by the novel coronavirus SARS-CoV-2 (coronavirus), can also be ob-served in Germany. The World Health Organisation (WHO) had already de-clared a health emergency on 30 Janu-ary 2020. According to the WHO, the coronavirus is therefore an exceptional occurrence that is serious, sudden, unusual or unexpected, poses a threat to human health, even across national borders, and requires a prompt interna­ tional response.

1. Employer’s information and notification obligations

1.1 Diseases / symptoms at work

Employers have to keep risks to the legal interests of their employees – including in particular health and life – as low as possible due to their contrac-tual obligations to protect and care for their employees. The employer must therefore also ensure that his employ-ees are adequately protected against infection by other employees who are ill.

Accordingly, the employer is obliged to inform his employees about the existing risk of infection and illness and to pro-vide information about preventive measures and appropriate behaviour. This applies in any case if the employer is aware of an employee’s illness or at least has concrete indications of the risk of infection in the company.

If the employer does not comply with this duty to inform, he exposes himself to a considerable liability risk. According to the highest judicial jurisprudence, the causality between the employer’s breach of duty and the employee’s injury to health is to be presumed in the case of failure to inform the workforce.

1.2 Stay of workers in risk areas

Employers should accordingly point out to employees that the Federal Foreign Office has issued travel warnings for particularly badly affected areas on its website and updates these on an ongo-ing basis. Employers should also gener-ally advise employees to reduce travel to such areas to a minimum and to consult a doctor before travelling to rule out respiratory diseases and/or a weakened immune system.

Returnees from such high-risk areas should also be advised to see a doctor immediately in case of flu-like symp-toms and to stay away from work until a coronavirus infection has been medical-ly ruled out.

1.3 General information on illness and operational (emergency) measures

There is a large number of national and european occupational health and safety regulations. The general consen-sus is: the employer must provide em-ployees with sufficient and appropriate information on safety, accident and health protection.

Employer’s instructions must be repeat-ed and adapted as necessary, depend-ing on the hazardous situation and possible changes. Depending on the course of the coronavirus and the changes in the risk situation, the em-ployer must be informed about the risks of the disease.

The employer must therefore provide appropriate information, in particular on the disease, its causes, symptoms, transmission routes and the associated risks of infection in the employment relationship.

In the event of an infection of an em-ployee or in the event of justified (con-crete) suspicion, the employer is obliged to initiate and implement ap-propriate protective and emergency measures in cooperation with the locally competent health authorities. The em-ployer must inform the workforce of these measures in a suitable manner. This can be done, for example, via the intranet or by posting a notice on the notice board.

2. Employee’s duty of dis-closure

From various points of view, the em-ployer is dependent on prompt infor-mation about an infection with the coronavirus and concrete suspected cases. On the one hand, the duties to provide information as described in section 1.1 must be mentioned here. On the other hand, an absence due to illness means an additional financial burden for the employer. He must re-munerate the employee who is ill for a period of up to six weeks without re-ceiving any work performance for this. Particularly, in the case of a longer-term absence, it may be necessary to find a replacement or to redistribute the tasks of the sick person to other employees.

2.1 Diseases and symptoms detected

In principle, an employee does not have to inform his employer of the illness he is suffering from. However, in the case of so-called notifiable disease according to the Infection Protection Act (sec. 6 para. 1 sentence 1 no. 1 and sec. 7 para. 1 sentence 1 IfSG in conjunction with the “Ordinance on the extension of the obligation to notify the Infection Protec-tion Act to infections with the novel coronavirus which first appeared in December 2019 in Wuhan/People’s Republic of China” dated 30.01.2020) – this also includes the coronavirus – the employer must be informed of the infection or the justified suspicion of infection by way of exception.

According to sec. 6 IfSG, clinics are obliged to report infections to the Rob­ert Koch Institute both in cases of justi-fied suspicion and in cases where infec-tions have been detected. The local health authorities then initiate the nec-essary measures. This includes inform-ing the employer so that he can take appropriate measures to protect the rest of the workforce (see also sec. 3).

2.2 Staying in risk areas and contact with persons at risk

The employer must take appropriate measures to minimise the health risks to his employees as far as possible on account of his duty of protection and care. This also includes the prevention of possible infections among employ-ees.

The employer is therefore entitled to ask employees whether they have re-cently been in risk areas and/or had contact with persons at risk. This applies in particular if there are corresponding indications of this.

The employee must answer these ques-tions truthfully. The employee’s obliga-tion to provide information is – should there be no such stay or contact – lim-ited to negative information. In this case, the employee can limit his answer to “no”.

3. Right to release from work / obligation to pay remunera-tion / overtime

3.1 Closure of the plant for the purpose of protection against infection

If infection with the coronavirus has already been detected in several employees of a company, the health au-thorities are entitled to close the entire company for reasons of protection against infection. In this case, the em-ployees must stay at home and the employer is obliged to continue to pay the remuneration owed or to continue to pay sick employees in the event of illness. This obligation results from the employer’s operational risk.

The employer can try to reduce his economic risk by demanding short-time work and thus have at least part of the remuneration owed replaced by the employment agency. The prerequisite for this is – in addition to the fundamen­tal permissibility of demanding short-time work on the basis of labour or collective bargaining agreements or works agreements – among other things that the loss of work is due to an unavoidable event. This is likely to be the case if a plant has to be shut down to protect against infection.

3.2 Unilateral release by the employer without official closure of the plant

A unilateral release of healthy employ-ees by the employer without an official closure order being issued is only per-missible in justified individual cases. In any case, the employer is entitled to exempt healthy employees from the obligation to perform work if there are already suspected cases of coronavirus infection in the company and there is a risk of further employees being infected. However, the mere abstract existence of a risk of infection through contact with other people in the company or on the way to work is not sufficient.

The reason for this is that employees are in principle entitled to be employed in accordance with their contractual agreements. This right to employment is a consequence of the freedom of action regulated in Article 2 para. 1 Constitutional Law. A unilateral release of the employee from the obligation to work by the employer can only be con-sidered if the employer’s interest in the release outweighs the employee’s inter-est in employment.

In any case, the employer remains obliged to continue to pay employees the remuneration owed under the em-ployment contract.

3.3 Unilateral arrangement of vacation

The unilateral ordering of vacation by the employer because of the corona-virus is inadmissible. It is true that the employer – provided the employee has not yet requested vacation – can in principle determine the period of vaca-tion on its own initiative. However, the employee is not obliged to accept this provision. He may refuse to grant vaca-tion for the period determined by the employer and express different vacation requests. The situation is no different if the employer has an interest in the employee being absent from the com-pany at a certain time. Otherwise, it could result that an employee’s entire annual vacation is used up by the uni­lateral vacation arrangement during the corona crisis and the employee is no longer able to take his or her vacation as planned.

This is not precluded by the fact that the employer is in principle entitled to order a certain part of the annual vaca-tion as vacation close-down. As a rule, vacation close-down must be an-nounced in advance so that employees can plan their vacation. A vacation close-down due to the coronavirus would be issued at very short notice and would therefore be inadmissible.

3.4 Unilateral arrangement of overtime

Also the opposite case is considerable: the employer can oblige employees still working in the company to work over-time, in particular to meet completion dates or deadlines.

The employer’s authority to unilaterally order overtime can arise both from collective-law provisions and from the respective employment contract. Even if the employer has not reserved such a right, the duty of loyalty requires the employer to perform overtime if the employer is in a situation of distress that cannot be otherwise resolved. The absence of many employees due to illness is an unforeseeable emergency not caused by the employer, and the re-maining employees are therefore obliged to work overtime due to the general duty of loyalty and consideration.

4. Home Office

4.1 Unilateral arrangement of home office by the employer

In principle, the employer cannot force employees to work in the home office unless there is an employment contract or company regulation authorising the employer to do so and there is a work-place at the employee’s home.

If this is not the case, the employee can demand that he/she be employed in the employer’s business or at the oth-erwise contractually agreed place.

Mutually agreed arrangements for working in the home office during a pandemic are of course possible at any time.

4.2 Entitlement of the worker to work from home

Simply because of the fear of infection, the employee may not work from home. This is only different if there is an employment agreement between the parties or if there is a corresponding agreement with the employee repre-sentative body in the employer’s com-pany, from which the employee is enti-tled to work in the home office.

The fundamental existence of an in-creased risk of infection when working on site at the employer’s premises does not change this. This is part of the gen-eral life risk. In the event of a concrete suspicion that other employees have become infected with the virus, the employer has the right to release the employee from work (see 3.2 above) and the employee has the right to re-fuse performance (see sec. 5).

5. Right to stay away from work

5.1 … due to fear of the coronavirus

If an employee refuses to work for fear of infection, even though there is no suspicion of infection in the company, the employer is entitled to issue a warn-ing to the employee and, in the event of a recurrence, to dismiss the employ-ee for conduct-related reasons. In addi-tion, the employee loses his or her right to remuneration.

If, on the other hand, the employer fails to take appropriate protective measures despite the concrete danger of infection in the company, the employee will be able to stay away from work with impu-nity. In this case he will not lose his right to remuneration.

5.2 … due to the closure of kindergartens and schools

Parents have to look for alternative care for their children when a kindergarten or school is closed due to the corona virus. If alternative care is not possible, they must take leave of absence. In this case, the employer cannot simply refuse the employee’s request for leave. How-ever, the holiday wishes of other em-ployees whose children are also without care may be opposed.

Alternatively, the employee can ask the employer for time off, but in this case the employer is not obliged to pay remuneration for the duration of the time off.

6. Entitlement of the em-ployer to present a certificate of good standing or a health certificate

A classic health certificate, i.e. a doctor’s confirmation that a disease has been cured and that an infection can no longer be transmitted by that person, is not legally required for coronavirus. Only in the area of food production, processing and supply is a certificate of good health, i.e. a doctor’s confirmation that a person does not have certain diseases or infections, provided by law. However, these diseases and pathogens do not affect the coronavirus.

However, the employer’s duty of care may, under certain circumstances, in-clude an obligation to submit a certifi-cate confirming the absence of a risk of infection as a contractual accessory obligation.

6.1 In case of illness of the employee

The employee is generally not obliged to inform his employer of the nature of his illness and to provide information about it (see sec. 2 above). This already follows from the employee’s individual personal rights. Although the illness or infection with the coronavirus is one of the infections that must be reported under the Infection Protection Law, this obligation to report does not initially exist in the relationship between the employee and his employer. Rather, the law only provides for the notification of the health authorities by name, which must be carried out by doctors, where-by the health authorities (in the case of a confirmed infection or illness) are also authorised to inform the employer of the person concerned.

However, in order to enable the em-ployer to counteract the spread of an infection with the risk of serious conse-quences for third parties in the event of contact between the sick employee and other persons in the company, once the illness has subsided in connection with an infection by the coronavirus, a direct right to presentation of a medical certif-icate confirming the absence of a risk of infection for third parties may be con-sidered on the basis of mutual consid-eration.

6.2 After staying in a risk area or contact with infected persons

Even if the employee has stayed in a risk area designated by the Robert Koch Institute, the employer is not entitled to make a claim in the absence of acute respiratory symptoms, according to which the employee is obliged to con-firm by a medical certificate that there is no acute risk of infection with the coro-navirus. At most after the occurrence of the symptoms and confirmed infection with the coronavirus, a claim to the presentation of a certificate of safety can be derived from the idea of mutual consideration, as described above.

7. Business trips

7.1 Employer’s right to order business trips

The employee’s contractual obligation to undertake business trips does not cease to apply per se due to the spread of the coronavirus. However, due to the employer’s duty of protection and care, a restriction applies to business trips in areas where there is a considerable risk of infection (risk areas). The current travel warnings issued by the Federal Foreign Office are to be regarded as the most authoritative in this regard, usually with reference to the assessment of the World Health Organization (WHO) and the Robert Koch Institute.

7.2 Obligation of the employer to take back employees from risk areas

Due to the aforementioned duty of protection and care, the employer is also obliged to arrange for the return ourney of employees who are on busi-ness in risk areas. As the mere presence in such an area is likely to constitute a sufficiently concrete suspicion, these employees should not work in the es-tablishment for a certain period of time after their return and/or provide a med-ical certificate of good health (see sec. 6 above).

8. Other measures

8.1 Handling requirements / emergency plan

It is strongly recommended that binding guidelines for dealing with the current situation be drawn up and published in the company. They should include in particular

  • compliance with hygiene standards
  • the definition of suspect cases
  • the behaviour in case of suspicion
  • the behaviour in case of detected infection
  • the company’s competent authori-ties
  • the current rules on business trips

In addition, an emergency plan should be drawn up to maintain operations in the event of infection and closure.

8.2 Right of co-determination

Individual subjects of regulation in the specifications for dealing with the cur-rent situation and the emergency plan are likely to concern the behaviour of employees in the company and thus be covered by the right of co-determination of any employee repre-sentatives existing in the company. In addition, it is likely that company agreements already exist which partly regulate these matters. For this reason, it is essential that employee representa-tives are involved in drawing up the guidelines for dealing with the current situation and the emergency plan in practice.

Of course we will keep you posted on the latest developments.

Your CC Employment and Labour Law

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