In response to the COVID-19 pandemic, all federal states in Germany have implemented containment measures, contact restrictions, and curfews. All shops, cultural institutions, and certain services (e.g. Hairdressers and fitness centers) that do not service universal supplies are currently closed and events have been banned.
In some states (eg, Bavaria and Baden-Wuerttemberg) strict curfews are imposed. Despite the curfew, anyone currently permitted to go to work.
Some producers stop production until April 19, 2020. Most companies allow work from home (if possible), and work from home is encouraged by the government.
Questions 1. In implementing COVID-19 responses at work, what labor law principles apply in Germany?
Answer 1. In Germany, official six-week paid sick leave applies. This has not changed because of the COVID-19 outbreak. To qualify for paid sick leave, employees must be sick. Generally, paid sick leave is not available if an employee is in good health and stays at home because his business has been closed.
Local and state authorities can order quarantine for people who are sick or in contact with infected people. Authorities can order such quarantine even for people who are not sick. However, if they cannot work because of the quarantine imposed by the authorities, they must be compensated by the authorities.
As a consequence of the effects of the COVID-19 crisis, the German government has facilitated access to so-called “short-term employment benefits.” In the case of significant and temporary reductions in employment, employers can implement reductions in work time (called “short-term employment”) and apply for short-term employment benefits to reduce labor costs and avoid redundancies. Reduction to zero working hours is possible. Employees receive a short-term work benefit from the Federal Employment Agency of 60 percent (67 percent for employees with children) from the net salary lost to compensate for part of the salary loss due to reduced work time. Short-term work benefits can be paid for a maximum of 12 months.
At present, the state is discussing a package to support entrepreneurs and small entrepreneurs (up to 100 employees) by paying non-refundable grants.
Q2 What do employers need to know about closure, termination of employment, quarantine, or shelter orders imposed by the government?
A2. As mentioned earlier, all federal states have implemented containment measures, contact restrictions, and curfews. All shops, cultural institutions and certain services that do not serve universal supplies are closed. Shows are prohibited.
In some states, strict curfews apply. This curfew does not prohibit employees from going to work.
Q3 What should employers know about border restrictions?
A3. The German government has imposed restrictions on entry into the following countries: Switzerland, France, Austria, Denmark and Luxembourg. This means that travelers from these countries may face restrictions on the German border and need a valid reason to enter the country. Anyone who has no valid reason will be refused entry. Commuters who must cross the border to work are still allowed into the country.
The European Union’s external borders are also closed. The entry ban for non-EU citizens was adopted on 17 March 2020, by the European Council. It is applied immediately and is valid for at least 30 days. This decision will also help keep German borders more open. According to the Federal Ministry of the Interior, the ban will affect all flights and ship trips that have a starting point outside the EU. There are exceptions for citizens of Norway, Switzerland, Liechtenstein, Iceland and the United Kingdom.
Q4 Can an employer send an employee home unknowingly who has or shows symptoms of COVID-19?
A4 Yes, the employer can immediately release the employee from his work assignment. He must be asked to immediately report to the doctor and to the responsible health office. If the employee shows symptoms, he is considered sick and cannot work. In this case, paid sick leave under the law applies.
Q5 Can an employer send home or require to work from the home of an asymptomatic employee who has close contact with someone with COVID-19 (eg, family members, close friends, etc.)?
A5. Yes, this is possible. The employee can be released from his work assignment and must be asked to spend 14 days in household isolation. If the employee does not show any symptoms, he may not be considered ill and cannot work by a doctor. In this case, paid sick leave under the law does not apply. In general, if an employee is released, the employer must pay the full salary. Therefore, employees can be ordered to work from home (if possible). If working from home is not an option, employers can reduce work time accounts.
Q6 Can employers require that individuals without symptoms not known to be exposed to COVID-19 to work from home for a certain period of time as a preventative or preventive measure?
A6 Yes Please see the answer to Question 5.
Q7 When does an employee who is sent home due to symptoms (subjective or measured fever, cough, difficulty breathing) return to work?
A7 That World Health Organization (WHO) workplace guide stipulates that in general business settings employees must isolate themselves for 14 days if they experience symptoms of COVID-19 and must consult with a healthcare professional before returning to work. This time period was also recommended by the Robert Koch Institute (RKI), the German public health agency responsible for disease control and prevention.
Q8 If an employee does not feel well enough to return to work at least 24 hours after not having a fever or showing signs of fever (without the aid of fever-reducing drugs) or other symptoms, can he still not work?
A8 Yes, the employee might still not work. In most cases, the employee will get sick leave for a certain period of time. If this is not the case, the employee must be released from work or work from home.
Q9 Can the employer ask for a doctor’s note from work so the employee will return to work after showing symptoms of COVID-19?
A9 Such doctor notes are not available in Germany, because employees are sent on sick leave on a doctor’s prescription for a limited period. If time is up, the doctor can extend sick leave; if no such extension is given, the employee should return to work.
Q10 If an employee says that he is ready to return to work and has a doctor’s note to return to work, but the employer is worried that the employee will not be able to safely carry out his duties, may the employer refuse to allow the employee to return to work?
A10 Please see answers for Questions 5 and 9.
Q11. Can employers require employees with COVID-19 to use their vacation time and / or other paid leave for absence?
A11. No, that’s not possible. In the case of an employee being infected, he is considered ill. Leave will be paid in full for six weeks, because sick leave paid for now is based on the law. This requires a certificate of inability to work issued by a doctor.
Q12. Maybe an employer needs an employee who does not show symptoms of COVID-19 but who has made contact with an individual with COVID-19 or is in a potential incubation period (for example, after returning from a trip to the risk area, as noted by WHO) to use vacation time and / or other paid leave for absence?
A12. If the employee is not sick, the employer can request leave deducted from the work time account. The employer can also instruct that the work time account is allowed to go below zero (into a negative balance) to a certain fixed maximum limit to compensate for vacation time.
It is difficult for employers to use vacation time without employee approval. The employer can request that vacation rights for 2019 be taken until March 31, 2020, because if not, the employee will lose it. Nowadays, many employers ask employees to take some of their vacation time.
Q13 Can employers advance vacation time and / or pay employees time off to cover COVID-19 absences?
A13. Only if there is a work time account for employees that can be managed in minus. In this case, the employer can request the work time account to run from minus to the specified ceiling. (Please also see the answer for Question 12.)
Q14. Can the employer make plans to forgive or not count absences related to COVID-19, whether for actual illness or quarantine?
A14. Yes WHO and RKI suggest working from home if possible. In any case, the public health authority recommends that the number of employees present at work should be reduced to the maximum extent possible.
Q15 Can employers choose to pay employees without symptoms that have been quarantined, even if the company policy does not provide paid leave?
A15. Yes WHO and RKI recommend that employers instruct employees at risk of infection to carry out isolation for 14 days. Employers may consider using holidays or credit from work time accounts, but that is not mandatory. Employees can decide to pay time off as well. If the vacation cannot be used and the work time account does not exist, it might make sense to pay the employee during his absence to prevent him from working at work.
Q16 Is COVID-19 absence protected by local paid sick leave laws?
A16. Yes, if the employee cannot work due to illness. Please see the answer to Question 1.
Q17 Can the employer calculate employee leave time because of COVID-19 for the employee in terms of employer attendance policy?
A17 Please see the answer to Question 5.
Q18. Can employers discipline employees who do not come to work because of COVID-19 because it violates the employer’s attendance policy?
A18. Generally not. If an employee leaves work because of the risk of infection and lives alone at home, this behavior is desirable.
If the employee is absent from work without risk contact or other risk of infection (e.g., Living in an area of risk), it depends. If the employee cannot work because he has to take care of the children, the law requires the employer to pay the employee for a very limited time (usually five days) unless otherwise agreed.
In other absences (eg, An employee cannot reach the workplace due to a disruption in the public transport system service), the employer may consider not paying leave.
Q19. Does the employer’s neglect of strict adherence to his attendance policy regarding COVID-19 set a negative precedent, opening the door for employees with other serious illnesses to state that their absence should not be counted against them in terms of attendance policy?
A19. Maybe not, because the current situation is very different from other health related situations. This is an emergency situation throughout the world and all agencies have taken very specific steps to avoid the spread of infection.
Q20. Is the employer’s knowledge that an employee has COVID-19 subject to privacy restrictions?
A20. Yes This knowledge is personal data related to health that is protected by General Data Protection Regulations (GDPR). This is also data related to employment relations. Under GDPR, such data may not be disclosed without a valid reason for doing so. Employees’ interest in protecting data privacy must be balanced with the employer’s interests in disclosing data (e.g., to protect other employees). If the employer acts to protect the work environment, he may have the right to disclose his knowledge to other employees to find appropriate steps to protect them (eg, self-isolation). Employers can also involve public health services to seek help in connection with the COVID-19 case.
Q21. Can an employee refuse to work for fear of being infected with COVID-19?
A21. In general, no. The employee is still required to work. A general fear of infection does not make the employee refuse to come to work.
The situation may be different when there is a higher risk of infection (e.g., in the health sector or on local public transport). Here, employees can request from employer protection measures. If the employer complies with this request, the work must also be carried out by the employee.
Q22. Can the employer refuse the employee’s request to wear respiratory protection and / or gloves that are provided by him / herself?
A22. No. It seems currently not possible.
On March 5, 2020, the Berlin Labor Court ruled a dispute between the employer and the workers’ council. The employer wants to ban employees in duty-free shops at Berlin airports from wearing masks for respiratory protection. The decision was not taken in this case because the employer finally agreed to the request. However, according to various media reports, the court is likely to side with the workers’ council.
Q23. Can an employer send home or require to work from an employee’s home without symptoms returning from a trip to a local transmission area?
A23. Yes On March 19, 2020, the German Federal Foreign Office issued travel warnings for all travel around the world. Anyone who travels now acts at his own risk. This means that the employer can request self-isolation for 14 days without payment of salary.
Q24. What can be asked of employees regarding cross-border business trips?
A24. Like most public health authorities around the world, German health authorities have asked employers to cancel non-essential business trips. Despite the challenges posed by actual transportation problems (many flights and train routes have been canceled), the health authority recommends avoiding any business trips.
Q25 How does the COVID-19 crisis affect my foreign workforce?
A25. Employers may want to know the boundaries of national borders, requirements for authorization of proof of employment, and requirements for employers who sponsor expatriates.
Q26. What unique problems might arise in connection with remote work / telework in Germany?
A26. In Germany, telework / work from home is highly recommended to minimize the risk of transmission at work. Even if work-from-home arrangements are not regulated in work contracts or company policies, agreements can be reached with employees because of the COVID-19 situation. With an employee who is paid in one country and works in another, the employer may want to be aware of taxes, labor laws, and payroll implications, although the authorities can consider the problem and mitigating factors if the employee’s reason for working remotely is related to COVID -19.
Q27 Can employers operating in Germany take leave without pay?
A27. No, under German law this is not possible unless the employee explicitly agrees.
Q28. Short of reducing power, what options do employers have to reduce costs as a result of work shortages related to COVID-19?
A28. German law provides for so-called short-term work and payment of short-term work benefits.
As a consequence of the effects of the COVID-19 crisis, the German government has facilitated access to so-called short-term work benefits. In the case of a significant and temporary reduction in employment, employers can implement reductions in work time (called short-term employment) and apply for short-term employment benefits to reduce labor costs and to avoid redundancies. Up to 0 hours reduction is possible. Employees receive a short-term work benefit from the Federal Employment Agency of 60 percent (67 percent for employees with children) from so-called flat flat rate salaries that are lost to compensate for lost salary due to reduced work time. Short-term work benefits can be paid for a maximum of 12 months.
Q29. If an employer operating outside the United States needs to reduce the number of employees on a global or regional basis, which German requirements might the employer need to consider?
A29. Under German law there are no jobs at will. In business operations that require more than 10 employees, dismissal due to operational reasons is subject to strict provisions. The employer must demonstrate that the employee’s position is permanently redundant, that vacant work is not available, and that labor reductions have been carried out properly. In addition, the minimum period of notification agreed and according to the law must be considered.
In cases where it is not clear whether a position is permanently redundant, short work hours with short-term work benefits paid by the state can be an option.
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
to request modification Contact us at Here or [email protected]