Germany: Latest COVID-19 related Updates to Employment Law

The legal situation for German employers regarding COVID-19 regulations is still dynamic. The past few weeks (again) brought changes in both statutory law and case law, for example regarding the compulsory offer of working from home. We shed light on the latest developments and the current hot topics from the German employment law angle.

1. Statutory regulations

Since 1 July 2021, the statutory obligation to work from home no longer applies. Of course, employers can still voluntarily allow their employees to work from home and are encouraged to do so wherever possible. Whether an employee is still entitled to work from home also against the will of the employer depends on individual and works council agreements in place at the specific company. Such agreements should, therefore, again be reviewed after the statutory obligation has now ceased to apply.

Aside from the working from home obligation, other pandemic-related protection provisions for employees and employers remain in force. This applies, for example, to the mandatory testing offer. Employers are (still) required to allow each employee to take two Coronavirus rapid tests at the workplace per week. Employees who provide proof of full vaccination protection or recovery from COVID-19 infection may be exempted.

Furthermore, employers remain obliged to implement the following infection protection measures at their premises:

Limiting the number of employees in work and break rooms

• Forming permanent operational work groups
• Wearing of mouth and nose covering in case of unavoidable personal contact
• Developing and implementing of company hygiene concepts

These regulations have currently been extended until mid-September 2021.

Companies continue to have easier access to short-time allowance. The application deadline has been extended by three months to the end of September 2021. This means that companies introducing short-time work for the first time or again after a three-month interruption until the end of September 2021 can take advantage of the facilitated access conditions for short-time allowances until the end of December 2021. Short-time allowance can already be applied for if at least 10 % of the employees in an establishment or a department have a loss of pay of more than 10 %.

2. Recent case law

Repeated violation of obligation to wear a face mask in the workplace can justify extraordinary termination

A Cologne labour court ruled in June 2021 that an employee who repeatedly refuses to wear a mouth-nose covering at the workplace can be dismissed with immediate effect. The court found that the extraordinary termination was justified even though the employee had presented a certificate exempting him from the mask requirement. The certificate presented by the employee was outdated and did not list any specific health reasons justifying the exemption from the mask requirement. This court ruling confirms the rather high requirements for any exemptions from the mask requirement at the workplace. Employees who repeatedly refuse to wear a face mask in the workplace without sufficient justification risk termination of their employment with immediate effect.

New case law regarding the effect of short-time work on employees’ vacation entitlements

The correlation between short-time work and vacation entitlements has recently raised more and more legal questions. During phases of short-time work, vacation has to be granted nonetheless and employees need to be paid in full during this time. However, the Düsseldorf regional labour court recently ruled that the vacation entitlement is to be reduced proportionally for every full month of short-time work “zero”, i.e. short-time work where the employee does not work at all.

On the other hand, pursuant to the local labour court in Osnabrück, the principle of proportionally reducing the vacation entitlement does not apply if employees only work less because of short-time work, but there is no short-time work “zero”. The court found that employers are not per se allowed to reduce the vacation entitlement of their employees in the event of short-time work on certain days, but this shall only be permissible if an employee does not work at all in certain time periods due to short-time work.

However, both the Düsseldorf regional labour court and the local labour court in Osnabrück expressly granted the right to appeal their decisions in the next court instance. Therefore, the topic of vacation entitlements during short-time work is still very dynamic and not reliably clarified yet by case law.

Key Action Points for Human Resources and In-house Counsel 

The situation for employers with regard to COVID-19 remains dynamic. Due to the legal cease of the obligation to work from home, employers should review the regulations they have in place for their employees. Where working from home continues, this needs to be based on appropriate individual or works council agreements, addressing topics like health and safety in the workplace, working time, data protection and confidentiality, liability and the conditions for revoking the employees’ right to work from home.

At the same time, employers must continue to observe the statutory protective measures against COVID-19 in their premises. This may also include dealing with employees who do not comply with these measures. Depending on the specific circumstances of each case, disciplinary measures up to and including extraordinary dismissal can be appropriate towards such employees.

With regard to short-time work, there is still no legal clarity as to what extent this may affect the employees’ vacation entitlements. Employers who choose to reduce vacation entitlements proportionally according to the days on which the employee did not work at all due to short-time work need to be prepared that such reduction may not uphold if challenged.