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Covid 19 – Employment Law Comments from kallan


Due to the current corona crisis and circulating misleading information, you will find below some clarifying comments from our employment law group, which will be happy to answer any questions you may have in this regard.

Is the employer obliged to pay wages if the employee is quarantined and/or banned from working and the employee is also suffering from corona virus?


If the employee is incapacitated by the disease, the salary must be paid as usual (section 3 para 1 EFZG) for the period of up to six weeks. The German Entgeltfortzahlungsgesetz (EFZG), "Act on continued Payment of Remuneraton", makes no distinction here between illness caused by pandemic infectious diseases and other diseases. In the event that the competent authority prohibits or quarantines the sick employee from working, the German Infektionsschutzgesetz (section 56 IfSG) provides as more specific regulation for the employee's right to compensation. The employer is obliged to make advance payment of the remuneration and may have a claim for reimbursement, which must be asserted against the competent authorities in the respective federal state. Please contact us if you have any questions, especially regarding the reimbursement procedure.


What happens if the employee is in quarantine and/or is banned from working, but the employee is not suffering from coronavirus?


This constellation is conceivable in cases of mere suspicion, contact persons to sick persons or people returning from risk areas. Here, too, the above-mentioned claim for compensation against the employer and possibly a claim for reimbursement by the employer under the IfSG exists. Please note that this only concerns officially ordered – not voluntary – quarantine.


Is the employer's claim for reimbursement secure?


No. The compensation mechanism under the IfSG does not apply if the employee does not suffer a loss of remuneration, i.e. the employer is still obliged to pay the salary despite quarantine, for example. For example, according to the case law of the German Federal Court of Justice, an ordered occupational prohibition – as known from the German Mutterschutzgesetz – constitutes a temporary and personal reason for prevention, which, according to section 616 BGB, obliges the employer to continue to pay wages. In this case, however, the employer may be entitled to reimbursement from the health insurance fund.

The currently known information from the Federal Ministry of Labour and Social Affairs also unsettles employers because it suggests that the employer is in principle obliged to pay in this situation. In many cases, we consider an employer's obligation to continue to pay wages pursuant to § 616 BGB to be highly questionable - and thus the claim for reimbursement to be given. We would be happy to discuss this with you, as the justification of an application for compensation is crucial.


What applies if the employee is not in quarantine, but cannot reach the workplace?


If it is objectively impossible for the employee to reach his or her workplace (e.g. discontinuation of rail traffic), he or she bears the travel risk and thus also the risk of loss of earnings. Both the employee and the employer are then released from the obligation to perform.


Are employers obliged to continue paying wages to their employees if the employer's business is quarantined or temporarily closed?


With regard to the continued payment of wages, according to the opinions that are probably predominantly published at present, employers are in principle still obliged to pay wages if the employees are able and willing to work. Here, too, employers should not be able to assert any claims under the IfSG, because the employee should have a claim under section 615 BGB. We are of the opinion that it also depends on the individual case. Thus, it can decisively depend on the specific nature of the business. Applications for compensation should also be made as a precaution.


Can employers send their employees home if they suspect an infection with coronavirus?


Employers can unilaterally exempt employees from the obligation to work if there is a suspicion of infection or illness, if the illness poses a risk to other employees or customers. The employee is then not entitled to continued employment, but the employer is obliged to continue to pay wages due to the illness. The suspicion of an infection must, however, be factually justified - e.g. by the presence of objective symptoms.


Does the employer have to continue to pay the wage if the employees have no childcare facilities due to the closure of schools and daycare centres?


First of all, parents must make an effort to find childcare for their children. If the parents cannot find a solution, they have to inform their employer. This can lead to a wage claim according to § 616 BGB. In addition to the duration of this entitlement, numerous other legal questions arise, which have never been discussed in depth with regard to the extraordinary situation as we experience today. In any case, it is certain that such a claim can only exist for a few days at most (possibly up to five days). Irrespective of this, the question of whether the employee may be entitled to unpaid leave must be assessed.


What additional measures can employers take?


Taking into account the relevant employment contracts and collective bargaining regulations, short-time work ("Kurzarbeit") or the ordering of time off can be considered.


Kurzarbeit is an instrument supported by the Federal Labour Agency according to which the loss of income due to reduced work time can be balanced by contributions so that the employee at least reaches 60% of his last net salary (for employees with dependents 67%), however all up to a certain maximum amount. Introduction of such short time work requires however the agreement of the employee based on a collective or an individual agreement, which can off course be made for this specific situation.


Before short time work is introduced so called "plus-hours" from overtime can be balanced by spare time but also taking of paid annual vacation which does not lead to reductions of remuneration. This is however a short-term solution only.


The possibilities depend very much on the individual case.

For all questions arising in this context, please contact your usual contacts in our employment law group or info@kallan-legal.de.

 

The situation resulting from the effects of coronavirus is changing rapidly. The above information reflects the situation on 19 March 2020 which may have changed since then.