Coronavirus FAQs for German Employers - McDermott Will & Emery

Coronavirus FAQs for German Employers






Do employees have a right to stay away from work or work from home because of the general risk of an infection with the coronavirus?

No. Without a concrete increased risk (e.g., infection of a direct team member), there is no such entitlement due to the general risk of infection.


Does an employer have a general obligation to take precautionary measures?

The employer’s duty of care (Fürsorgepflicht) obliges the employer to take appropriate measures to minimise risks. Measures must be taken at a minimum in areas where the coronavirus has occurred and in workplaces where employees regularly travel abroad. The employer must take measures itself (e.g., publication of rules of conduct, provision of disinfectants) and must tolerate measures taken by employees (e.g., avoidance of direct contact with colleagues).


May the employer continue to order business trips to China, northern Italy and other affected regions?

This will probably be judged differently by the regional labour courts. In any case, an employee does not have to comply with an order to travel to areas where there have been a high number of coronavirus infections.


May an employer send an employee home on suspicion of infection with the coronavirus?

Yes. The employer’s domiciliary right entitles it to do so. Furthermore, the employer has a duty to protect its employees under section 618 German Civil Code. This duty includes protection against increased risks of infection to which employees are exposed through work-related contacts with colleagues, customers or other third parties.


Do affected employees continue to receive their remuneration? Who bears the costs?

A distinction must be made here: If an employee is actually ill with COVID-19, the general rules for sick pay apply. The employee continues to receive remuneration from the employer for up to six weeks. After that, the employee receives sick pay from health insurance.

If the employee is merely infected (but shows no symptoms) or if such an infection is suspected, the employer is likely obliged to continue to pay remuneration for an “appropriate” period of time, according to Section 616 German Civil Code. However, it is still unclear for how long this obligation exists. The employee may also be entitled to compensation claims (Verzugslohn) against the employer if the employee is prevented from performing their work due to an organizational fault of the employer (e.g., inadequate IT environment that prevents work from home).


Does the works council have a right of co-determination if the employer prohibits business trips or meetings, or reduces them to a minimum?

No. These instructions concern the way the services owed by the employee are provided and are therefore not subject to co-determination of the works council.


Does the works council have a right of co-determination if the employer establishes additional safety measures and rules of conduct (e.g., guidelines on the frequency of hand washing or use of disinfectants)?

In principle, instructions on conduct (Ordnungsverhalten) are subject to co-determination. If, however, the employer only implements legally compulsory obligations, there might be no room for discretion or negotiation. However, the works council must be informed in any case, as monitoring compliance with health and safety measures is one of the council’s tasks.


May an employer prohibit employees from visiting concerts or restaurants or using public transportation outside working hours?

No, because this concerns the private sphere of the employee’s life.


Who bears the costs if an employee cannot come to work because she has been quarantined by the authorities?

In such a case, the employer is obliged to continue to pay the employee’s net salary. However, the authority that ordered the quarantine is in principle obliged to reimburse the employer afterwards.


Are employees obliged to comply with established (reasonable) rules of conduct? What if they do not comply?

Yes. If an employee violates his obligation under the employment contract to comply with occupational safety and accident prevention regulations, the employer may be entitled to terminate the employment relationship for conduct-related reasons. A prior unsuccessful warning is usually a prerequisite for such termination. Intentional serious and repeated violations of safety regulations, despite relevant warnings, can justify a termination of the employment relationship.


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