Coronavirus Update for Employers in Germany

• Independent patient advice service Germany – 0800 011 77 22
• Federal Ministry of Health (telephone service for the public) – 030 346 465 100
• General initial information and contact placement – authority number 115 (www.115.de)
• Consultation for the deaf and hearing impaired – Fax: 030/340 60 66 – 07 info.deaf@bmg.bund(dot) de / info.gehoerlos@bmg.bund (dot) de
• Sign language telephone (video telephony) – https://www.gebaerdentelefon.de/bmg/How insurance carriers are treating cases in relation with COVID-19:

Specific insight for employers

• Although employers have the right to issue instructions relating to the employee’s duties, the place and time of their discharge, employers equally have a duty of care towards their employees and should not expose them unnecessarily to risk.
• This duty of care increases during a pandemic and depending on the specific situation, employers are generally required to carry out a risk assessment and prepare a corresponding plan including preventive measures.
• Employers are required to educate and inform employees about correct hygiene habits, such as the proper washing of hands, sneezing and coughing etiquette, discourage shaking hands and the provision of hand sanitizer. Every situation must be treated on a case by case basis, but a mask is not usually necessary unless employees work in the health or food industries, for instance.
• In order to comply with their duty of care and to enable the employer to take protective and preventive measures, employers may now ask employees where they were on holiday and to report any such trips and to contact the employer by phone or email prior to returning from a high-risk area.
• Where the employer has reason to believe that an employee may endanger other employees, the employer may unilaterally release the employee concerned from their duties or deny them access to the premises. In such cases, the employee retains their right to remuneration.
• Since March 9, 2020 and for a limited period of 4 weeks, employees with mild upper respiratory tract infections can receive a sick note for up to seven days after consulting their doctor over the phone. It is not necessary to go to the doctor’s office for this and the sick note is sent to the employee by post.
• Where there is a strong suspicion of a corona infection, employers should notify the public health department and any cases are to be reported to the competent health authority.
• An employee suspected to be infected should remain separated from other persons until a suitable corona testing site can be reached.
• The employee should be released from work on paid leave until they have been tested. Additionally, the people who were in direct contact with the employee should be determined through appropriate interviews and ideally also be tested.
• Employers must protect all other employees in the event of a specific danger situation. If the employment contract permits, employers may order work to be performed from a home office and if not, both parties may simply agree that work be done from home during this time.
• If a majority of the employees are unable to work, employers may require the remaining employees to work overtime for the completion of necessary and/or urgent tasks/projects.
• Should a company be closed by the employer as a precautionary measure and the employees cannot work although they wish to, they are to be released from work with pay during the period of closure. Employers may not require employees to make up for this time later on.
• If an official quarantine or ban from work is ordered by the competent authorities, the employer may apply for reimbursement of salaries paid to affected employees. The reimbursement is not automatic and must be applied for.
• Closure or a reduction in working hours due to a shortage of work, e.g., delivery problems or a reduction in production does not relinquish the employer from their duty to continue pay, so- called operational risk. However, with short-time work, which is a complete or partial temporary reduction of regular working hours coupled with a corresponding reduction of pay due to a significant but temporary shortage of work, employers may reduce work and apply for short time work compensation from their relevant employment agency.
• A loss of productivity due to coronavirus and/or its effects, may thus give rise to a claim for compensation for reduced hours or reduced productivity.

• The employer may not declare a unilateral reduction and either a collective or an individual agreement is necessary. Therefore, if there is no works agreement or the employment contract does not permit short time work, the employee’s consent must be obtained prior to its introduction.
• The application is made by the employer and the requirements, all of which must be fulfilled, are that:
  • it is due to economic reasons or an inevitable event
  • it is temporary
  • unavoidable
  • at least one third of the employees employed in the company are affected by a loss of remuneration of more than 10% of their gross monthly salary in the respective claim period.
• Short-time work compensation is granted for a maximum of 12 months and comprises 67% of the net pay difference for employees with at least one child and 60% of the net pay difference for childless employees.
• A new Work of Tomorrow Act is currently being drafted which should come into effect on April 1, 2020, the aim of which is to relax the requirements while, inter alia, extending benefits to temporary employees as well. This Act will be limited in time and be valid till the end of 2020.

Rights and duties of employees

• The presence of the COVID-19 pandemic does not relinquish the employee’s duty to perform their work. In terms of employment law, employees may not unilaterally decide not to go to work due to concerns of an infection. The employee must either take paid or unpaid time off. Anytime off must be taken with the employer’s approval unless there is a clear and foreseeable risk to the employee’s health.
• While employees do not have any general legal entitlement to work from home and employers may not unilaterally impose the obligation to do so on employees it was never contractually agreed on, working from home/remotely is certainly an option available to both parties at present.
• Business trips are also considered “work” in terms of the employment contract and the employee is thus required to comply with an employer’s instruction to travel for business purposes. The employee does not have a general right to refuse travel, even to infected areas. However, if the Federal Foreign Office has warned against travel to certain areas, employees may refuse to travel to those areas. The burden is on the employee to show that they would be at risk.
• Although the employee is normally not required to inform the employer of the details of an illness, employees also have a duty of care towards their employer. Therefore, should an employee become infected with the coronavirus, they have a duty to notify their employer of this fact, especially given it is highly contagious and the employer has a duty to protect other employees and/or clients.
• An employee who is unable to work due to illness arising from a coronavirus infection is entitled to continued remuneration for 6 weeks as with any other illness. That said, while an employer may not prohibit an employee from traveling for private purposes, an employee who, for instance, ignores a travel ban and travels to high risk area (privately) and consequently contracts the virus would not be entitled to a continuation of remuneration as the law requires that the illness is not a result of the employee’s own fault.
• Mere suspicion of illness does not give rise to a claim for continued remuneration. If an employee is under observation, quarantined or not permitted to work by the authorities, they may claim compensation for loss of earnings from the relevant competent authorities. However, the employer is required to continue pay and then request reimbursement from the relevant authorities.

• If schools, kindergartens and nurseries are closed as a precautionary measure, employees are entitled to time off with remuneration according to Section 616 of the Civil Code. However, this entitlement is limited to a few days, usually 1-5 and remuneration is only continued if this has not been excluded in the employment contract. Employees must therefore take paid or unpaid time off, with the employer’s approval to look after their children. If it is possible for employees to work at home, this would also be an alternative in such cases.
• However, if a child is unwell and under 12 during the closure, the employee is entitled to continued remuneration or unpaid off as with any other illness.
• A stoppage of public transport also does not relinquish the employee’s duty to get to work. If the public transport system is also shut down, the employee is still required to get to work and employers are not required to continue remuneration for failure to work as a result. However, both parties can agree that work be done at home, where possible.

Government travel policies

Arrangement for travelers arriving from risk regions in Germany:

• Carriers of travelers who come to Germany by plane, ship, train or bus from high risk areas, China, Iran, Italy, France, Japan, South Korea must provide their passengers with instructions on how to prevent the disease or how to react if symptoms appear. The same applies to all operators of airports, ports, passenger stations and bus stations.
• Travelers arriving in Germany by plane or ship from Iran, Italy, Japan or South Korea must provide flight / trip details and personal accessibility for the next 30 days before leaving the plane or ship. Travelers from China to Germany must additionally provide information about their whereabouts in China, contact persons and their current health.

Further resources

If someone is concerned that they have been infected with the coronavirus, they should call their GP or 116117 – the emergency medical services number.

• Federal Ministry of Health
• Robert Koch Institute
• Federal Foreign Office
• Federal Office for Health
• European Centre for Disease Prevention and Control

Asinta’s German Partner, Profion, provided this coronavirus update for employers in Germany.