Answers to important questions
As with other highly infectious diseases, employers have a duty to inform their staff about the coronavirus as part of their general duty of care and consideration (Sec. 241, 618 German Civil Code [BGB]). The extent of this duty to inform depends, among other things, on whether a member of staff is suspected of having caught the virus, whether or not this has been confirmed.
a. No suspected cases in the business
In view of the high rate of infection and the extreme measures that are required even in merely suspected cases, it can be assumed that employers have a heightened interest in and therefore the obligation to inform their staff even if there is as yet no definitive suspected case of coronavirus infection among them. The information employers should provide is a description of the symptoms (in particular information found on the websites of the Robert-Koch-Institut or the Bundeszentrale für gesundheitliche Aufklärung), as well as of the particular risks in the business in question and what to do in the case of a potential or confirmed case.
However, privacy law means that employers do not have the right to ask their employees where they have travelled in the last 14 days or even enquire about their symptoms without a specific reason. On the other hand, under their contractual duty of care, employees are required to inform their employer if they believe they may be at risk of infection by the coronavirus. The employer can draw attention to this general fact without risking a breach of privacy law.
b. Suspected case in the business
If there is a suspected case of coronavirus in the business, the employer will have to inform the rest of the staff about it so that people who have been in contact with the case can be identified. The fact that this would involve divulging private data is subordinate to this duty. This is because, under Art. 6(1) lit. b), d) and f) GDPR, processing this data is legal, as preventing the further spread of the disease outweighs the employee's privacy interest (Art. 9(1) GDPR in conjunction with Section 26(3) German data protection law [BDSG].
Not just confirmed cases of coronavirus need to be reported. Since February 1, 2020, even suspected cases have to be reported (see Section 1 Verordnung über die Ausdehnung der Meldepflicht nach § 6 Absatz 1 Satz 1 Nummer 1 und § 7 Absatz 1 Satz 1 des Infektionsschutzgesetzes auf Infektionen mit dem erstmals im Dezember 2019 in Wuhan/Volksrepublik China aufgetretenen neuartigen Corona-Virus [German Ordinance Extending Reporting Obligations under Section 6(1) sentence 1 No. 1 and Section 7(1) sentence 1 Infection Protection Law to infections with the new coronavirus first appearing in December 2019 in Wuhan, PRC, of January 30, 2020). However, according to Section 8 of the Infektionsschutzgesetz, the reporting obligation applies only to the attending doctor or other medical staff, rather than the employer. This means that employers do not have a fundamental obligation to report a suspected case to the health authority [Gesundheitsamt]. The health authority will find out about the case from the doctor in question. In spite of this, it would be expedient to get in touch with the relevant health authority (which can be done via a tool on the Robert-Koch-Institut website) in order to agree on further action to be taken.
Employers are under a general obligation to protect their staff against any danger to life and limb (Section 618(1) German Civil Code [BGB]).
This includes the obligation of the employer to make employees aware of possible risks to their health and to set out internal protection measures (Sections 12(1) German Safety and Health at Work Act [ArbSchG] and 81(1) sentence 2 German Works Constitution Act].
Employers must take reasonable precautions to prevent possible infection by other carriers of the virus, whether they are staff or third parties.
However, there is no specific guidance on what form such protective measures (against a coronavirus infection, for example) should take (Section 4 ArbSchG).
Setting up internal rules to regarding hygiene is a basic cost-free, and therefore reasonable, way of complying with the legal requirements.
To what extent further protective equipment such as disinfectants, face masks and gloves need to be provided should be decided based on the nature of the business and the number of staff.
Employees are under an obligation to advert damage and other adverse events away from their employers (Sections 241(2) and 242 BGB). Whether, and if so which information the employee must provide, depends on the individual case. Privacy law means that employees who have been infected by the virus do not need to inform their employers of their diagnosis or their symptoms. To this extent, the laws are no different than for any other illness. Generally, employees are under no obligation to inform employers of the names of individual persons with whom they have been privately in contact.
Employers also have the right to question their employees within the scope of their employment obligations. In principle, the following applies: The greater the risk of infecting co-workers, customers or patients due to contractual activities, the broader the right of employers to question employees. Employers have the right to ask employees if they have travelled to areas which are subject to travel warnings by the foreign office and about any contact with persons who have visited such areas. This is in line with the employer's duty of care towards the remainder of staff as well as to customers or patients. To this extent, it is acknowledged that employers may also ask about infectious diseases that could spread to co-workers or clients.
However, on privacy grounds, employers have to satisfy themselves with simple "yes" or "no" answers - privacy law does not obligate employees to divulge more detailed private information.
Employers may instruct employees to travel on business nationally or internationally if they are under a contractual obligation to undertake business travel and are obligated to perform the work domestically/abroad; depending on the job description, travel may be part of the job (e.g. sales representatives).
With regard to the modalities of internal meetings and the participation of an employee in such, as well as (other) rules of conduct within the company, employees are generally obligated to follow their employer's instructions.
However, under Section 106 German Commerce Act [GewO], employers may only issue instructions at their "reasonable discretion". This means that they have to strike a balance between the interests of their staff and the interests of the business. Under their duty of care, employers have the obligation to protect the health of their employees; but this does not mean that business travel should be suspended whenever there is a risk.
One recognised indication for the unreasonableness of business travel is an official travel warning by the German foreign office, unless taking such risks is part of the employee's job description (hospital transport, security services, flight staff, etc.). Currently, for example, there is an official Foreign Office warning against travelling to Hubei province. However, to the extent that there is a good chance of infection by the coronavirus, the employer must not expose its employees to any risk. It goes without saying that employees may not be sent to countries which have closed their borders.
The same applies to business meetings or internal codes of conduct. To the extent that any of these pose a particular risk to the employee, any instructions in this regard would contradict the employer's duty of care and ultimately mean that the employee is under no obligation to comply with the employer's instructions and will not suffer consequences under labor law.
In case of doubt, however, employers have to consider the following risks:
• Employees may take "avoidance measures" (e.g. reporting sick on the day of travel).
• The employer's reputation can suffer considerably if the employer ignores the risks.
• Failure to take precautions may cause the business far more harm - for example by spreading the infection and the disease - than foregoing physical meetings.
Whether an employee can demand or an employer can order work from home depends on the contract of employment concluded between the two parties.
If there is no mention of this in the contract and the nature of the work carried out makes home/remote working possible (probably only the case for office work), a corresponding agreement can be made between the employee and the employer retrospectively and for a temporary period.
However, the employee does not have an entitlement to home/remote working. Under Section 106 GewO, the employer decides where the employee will work. If an employer does not agree with an employee's request to work from home/remotely, the employee is obligated to work at the company's premises. If the employee fails to come to work in spite of this, the consequences under labour law come into play (warning and termination). However, this does not apply if a government authority declares a particular level of danger of infection, or if the employee can prove that there is a real danger of infection at their workplace.
On the other hand, in certain situations, an employer may require an employee to work from home / remotely, even if this is not specified in the contract, without the agreement of the employee: Section 106 GewO applies here. The employer must ensure that the employee has the necessary equipment and connectivity and the right to use his/her home for work.
Flexible offices are offices where different employees use the same workstation on different days. These workstations are usually equipped with monitors, keyboards, mice and laptop docking stations. The fact that the several employees use the same keyboard and mouse means there is an increased risk of infection. This risk of infection exists even in "normal" times - many viruses and bacteria can survive for days on keyboard surfaces at room temperature.
Employers are required to take appropriate measures to mitigate these risks. They can decide for themselves whether they prefer:
• to provide disinfectant wipes at each workstation and require staff to use them regularly; or
• to provide staff with personal equipment which they have to take home every day.
• Another option is to give the office cleaning staff additional duties to disinfect all workstations, keyboards and mice on a daily basis.
The question of whether an employer can require an employee to do overtime and additional work depends on the contract of employment; however, such a provision is usually provided.
In addition to obtaining the agreement of the works council, overtime also has to be evaluated in terms of the German Working Hours Act. Sections 3 et seq. German Working Hours Act imposes mandatory maximum limits, which may only be exceeded under exceptional circumstances. The German Working Hours Act provides for a working week of six eight-hour days, i.e. 48 hours per week. An increase to 10 working hours per day is only possible if the additional hours are offset within six calendar months or 24 weeks. This usually works well, not least because of the fact that most of the workers today mostly work a five-day week.
Even work in excess of 10 hours in one day is possible under Section 14(1) of the German Working Hours Act where it is required in emergencies or extraordinary circumstances beyond the control of the affected parties and whose consequences cannot otherwise be remedied, for example, if raw materials or food will spoil or a task will fail if it is not completed. Of course, the same applies where human life is endangered (hospital staff).
A large number of infected staff or staff who are quarantined at home as a precaution is an extraordinary circumstance of this type. Epidemics like this do not occur regularly and are not foreseeable (cf. BAG, judgment of Sep. 17, 1986 – 5 AZR 368/85).
However, even in times like this, extended working hours are not a long-term solution. Businesses have to adjust their processes in order to return to "normal" work volumes. In addition, exceptional circumstances are also subject to the limit of Section 14(3) of the German Working Hours Act, which does not allow an average working week of 48 hours to be exceeded in a period of six calendar months or 24 weeks.
The German Infection Protection Law [IfSG] gives the authorities a number of rights to information and to intervene to protect the spread of infections. Section 16(1) of the law allows the authorities to take "necessary measures" to prevent dangers to individuals or the general public if facts are established that could lead to a transmissible danger, or such facts can be assumed to exist. This very broad provision includes the closure of entire businesses. The threshold for the act to kick in is very low, as it is sufficient for facts to be established that a disease may arise. One infected employee would be enough to trigger this.
Under Section 16(8) German Infection Protection Law, appeals to the authorities or challenges in court to overturn the measure do not have a suspensive effect. This means that the legal entity of the business affected does not have any immediate options for opposing an order to shut down. As a result, such an order has to be provisionally accepted. However, the affected party does have the option of subsequently challenging the effectiveness of the closure order in court and to claim any damages/loss of sales from the authority in question.
This depends on the reason why the employee is not required to work.
a. Official prohibition on work by individual employees
The relevant authority may prohibit a person who is not sick, but, for example, who is suspected of being sick or infected (e.g. due to affected family members) from working (Section 31 German Infection Protection Law). According to Section 56 of the law, these persons have a right to receive compensation. During the first six months, the compensation payable is based on the actual salary lost (net payment), and subsequently on sick pay (Section 56(2) and (3) German Infection Protection Law). Under Section 56(5) of the Law, employers are required to pay the compensation in monetary form (further details in Sections 57 et seq.).
Employers may apply to the authority for a refund of the money paid out within three months following the payment. According to Section 56(12) German Infection Protection Law, employers may apply for advance payments of the compensation that they expect to pay.There is also additional compensation for freelance workers, for example (cf. Section 56(4) of the law).
However, employers are not entitled to compensation if they were required to make the payment anyway (for example, under Section 616 BGB). The Federal Court of Justice regards a work prohibition under Section 31 German Infection Prevention Act as a temporary and personal ground requiring the employer to continue paying the employee under Section 616 BGB (BGH, judgment of Nov. 30, 1978, III ZR 43/77; Henssler, in MüKoBGB, 8th ed. 2020, BGB Section 616 para. 25).
If the employer wants to avoid making these payments, Section 616 BGB should be contractually waived by means of a works agreement or a collective agreement. However, as it is generally the case that a prohibition on work would apply to several employees, rather than a single employee, it can be assumed that there is an objective impediment to carrying out the work. In this case, Section 616 BGB, and hence too the employer's obligation to continue paying remuneration, is eliminated. It is then the authority's obligation to pay compensation under Section 56 German Infection Protection Act.
b. Official order to shut the entire business
If the relevant authority orders the closure of the entire business, we believe that employers are justified in refusing to continue to pay remuneration. We assume that the reason for the closure in such cases is not within the scope of an employer's normal responsibility and is not a general business operating risk (cf. Section 615(3) BGB).
On the other hand, if the order to shut the business is part of the general business risk of the employer due to special circumstances, the employer would be required to continue paying the employee. This could be the case, for example, if the closure by the authorities already lies in the nature of the business, in other words, the business is particularly affected by such closures. This should be checked on a case-by-case basis.
A business closure due to an epidemic or pandemic is usually a general situation that affects all businesses equally. Most businesses would therefore be entitled to claim compensation from the relevant authority under Section 56 German Infection Protection Act.
In cases where an employee catches the coronavirus and the employer's business is subject to an official closure order, it is not clear whether the requirement for continued remuneration under Section 3(1) German Continued Payment of Remuneration Act [EFGZ] supersedes the employer's right to compensation under Section 56 German Infection Protection Act. In our view, it is highly likely that in this case the employer is entitled to claim compensation from the relevant authority, as the law is configured in such a way that the entitlement to compensation arises independently of whether staff members are actually ill. In that case, a prohibition on working as a result of an official order would, due to its obligatory nature, take precedence over the general requirement to continue to pay remuneration, thereby relieving the employer.
c. Free decision of the employer
A company must continue to pay the salary of its employees if it voluntarily releases its employees from the obligation to perform work, for example purely for reasons of internal company precaution. The employer bears the risk of being able to employ its employees who are ready to work (so-called "business risk", cf. Section 615 sentence 3 BGB). The employer can try to mitigate the business losses arising as a result of this, for example, by providing legal and real conditions for the employee to continue to work from home or for reduced hours.
In the case of freelancers, employers can postpone the obligation to provide work, provided that the contract allows for such flexibility. If the freelancer is unable to complete an agreed job by a specified time due to the above circumstances, the employer is still required to pay the fees owed.
In principle, employees are required to continue to work as usual, even in the case of a pandemic.
In cases where there is no official work prohibition on the part of the authorities, employees may only refuse to work if there is an objectively substantive threat to their health (Sections 30 and 31 German Infection Prevention Law). However, the bar is set very high and it will only apply in a very small number of cases. An example would be the exceptional case of an employee being required to go on a business trip to an area subject to a travel warning by the foreign office. There is also a general right to refuse to work. For example, this right arises in the conditions referred to in Section 616 BGB, or in case of Section 2(1) German Home Care Leave Act (PflZG) where family members are in need of special care.
In our opinion, Section 616 BGB can also apply if schools or kindergartens close of their own volition, i.e. without an official order. If Section 616 BGB applies to the particular contract of employment, the parents affected have the right to stay off work on full pay from their employer for a relatively insignificant length of time. In such cases, parents often have to stay at home to care for their children. However, they do have to explain to their employer the reasons why, among other things, no alternative care options (e.g. neighbours or other children's parents) were available.
Any employee who infects a co-worker is liable both vis-à-vis the co-worker and their employer.
There are no contractual relationships between employees in the same business. Co-workers are therefore only liable in the case of tortious (statutory) acts - such as Section 823 BGB. However, the rules of internal compensation for damage which modify such rights have to be taken into account, in particular Section 105(1) SGB [German Social Security Code] VII. This states that co-workers working in the same business are excluded from liability to one another in the event of occupational accidents. Infections caused in the course of business activity can also be considered as occupational accidents.
However, the preclusion of liability does not apply if one employee deliberately causes harm to a co-worker (Section 105(1) sentence 1, last part SGB VII). According to case law, this requires that the employee consciously and wilfully acts in the knowledge of the consequences of the damage and desires to cause it (cf. BAG, Judgment of October 10, 2002, 8 AZR 103/02). So in the case of a coronavirus infection, the person causing the infection must have acted wilfully to infect the co-worker. It is only in this situation that the infected employee (or the employee's inheritors in the case of death) may sue the co-worker for compensation and damages.
If the employer, as a natural person, suffers harm from an employee, the employer may also claim damages against an employee on the same grounds. However, liability may be precluded under SGB VII. Section 105(1) SGB VII applies according to Section 105(2) sentence 1 SGB VII. Preclusion of liability does not apply if the harm is caused deliberately, Section 105(2) sentence 1 and 1(1) sentence 1 SGB VII.
In addition, the employee's liability for economic damage caused vis-à-vis the employer comes into consideration, which arises as a result of the employee's deliberate infection of the co-worker, leading to the costs of continued payment of salary and any losses caused to the business. This is not ruled out by SGB VII, which applies only to loss of health, but does not include consequential losses to business assets.
The contract of employment governs the legal relationship between employer and employee. This obligates both parties, under their ancillary contractual obligations, to show mutual consideration for the legal interests and rights of the other party (Sections 242, 241(2) BGB). If an employee infects a co-worker while performing their duties, the employer has a right to sue the employee for damages on the grounds of a breach of ancillary contractual duties if and to the extent that the employee acted deliberately or negligently according to Section 276 BGB.
The claim for damages is modified in the event of operationally induced actions by the principles of in-house compensation. (cf. BAG, Judgment of April 18, 2002, 8 AZR 348/01). Infection with a virus is not in itself an activity performed in the course of one's work, but is simply an ancillary phenomenon of such performance. However, the employee has acted on behalf of the employer in carrying out the work from which the infection resulted. According to the rationale and purpose of internal compensation for damages, here again, there has to be a trade-off between employer and employee. This means that employees are not liable in the case of minor negligence. In the case of moderate negligence, liability is apportioned between employee and employer; and in the case of gross negligence the employee can even be held wholly liable (cf. BAG, judgment of April 18, 2002, 8 AZR 348/01).
If employees breach their obligations with regard to the coronavirus, employers can respond under the general principles of employment law. The available options are to issue a warning, dismissal with due notice on grounds of behaviour, or as the most extreme measure, extraordinary termination without notice.
A proportionate response depends on how the employee's conduct which led to the breach of his/her obligations and the degree of culpability. As always, the individual case has to be considered in the light of all relevant circumstances. Generally speaking, the breach of obligations in question will not be so severe as to immediately incur dismissal with due notice or extraordinary termination without notice. This would be the case if an employee at an airport duty-free shop puts on a face mask whenever passengers with a Chinese appearance enter the shop, in breach of a prohibition on doing so.
Recently, the labor court in Berlin had to rule on an injunction case in which the works council brought an action against such a prohibition from the aspect of infringement of co-determination rights (ArbG Berlin, ref. 55 BVGa 2341/20). In the event that a prohibition on wearing a face mask is legally effective, an infringement of the prohibition would in the first instance be subject to a "mere" warning.
The situation would be different if an employee persists in going to work despite having typical symptoms of the disease or even a positive diagnosis, thereby spreading the virus by infecting co-workers, resulting in the danger of closure of the business.
Partial unemployment allowance can be considered if there is significant absenteeism in a business. The condition is that the absenteeism is temporary and unavoidable. Absenteeism is only significant within the meaning of SGB III if it has economic grounds or is based on force majeure. Generally speaking, business-related conditions for partial unemployment allowance are considered met if business operations have to be halted because suppliers or service providers in the supply chain cannot perform their services because their own staff are absent or because raw materials are temporarily unavailable.
According to official information from the homepage of the Agentur für Arbeit, partial unemployment allowance can also be considered in relation to the coronavirus if government protection measures (e.g. official quanrantine measures) result in a business having to shut down temporarily. However, this does not in itself make it clear whether the conditions for drawing partial unemployment allowance are considered met if an employer decides of its own accord to close a business as a precautionary measure where this is not officially required or mandatory. In such cases, the best course of action is to contact the relevant offices of the Agentur für Arbeit at the earliest possible stage in order to try to resolve the issue of authorising partial unemployment benefit even before the actual formal notification to the Agentur für Arbeit which is required in any event, is sent.
Even in times of crises, works councils still have the right to participation and co-determination. For instance, in the current situation this applies to;
• the participation of the works council under Section 99 BetrVG [German Works Constitutions Act] on temporary home working / remote working measures,
• full participation by the works council in general health protection measures, in other words, practically all measures aimed at preventing the spread of the coronavirus.
However, the works council does not have a say when an employer is merely obeying instructions by the authorities (such as closure of the business by the authorities - see 9 above). The works council has to give its approval in all cases - ranging from the distribution of disinfectants and ordering their use to more drastic measures - and it can even force the employer to take measures (known as the "initiation right"). Usually a threat analysis would first have to be carried out; but if the employer is obviously acting recklessly, the works council may require it to attend the arbitration board and there, with the assistance of a neutral arbitrator, force the employer to take specific measures, including instructing employees to work from home/remotely.
Conversely, measures taken by the employer require the placet of the works council. If the works council is unreasonable and disagrees, the employer may choose between the arbitration board or simply implementing the measure, and informing the workforce. In this case the employer could be fined (up to €10,000 in each case), but a court would hardly satisfy itself with this if the works council has effectively opposed protection of the workers.
If employees want to protect themselves, such as by wearing face masks and gloves at work (such as with the Duty Free Shop in Berlin Airport) and the employer prohibits this, the employer is acting contrary to the principle of co-determination and may be subject to an injunction by the works council forcing the employer to repeal the prohibition (cf ArbG Berlin, file 55 BVGa 2341/20).