international employment law firm alliance L&E Global

Germany: No Continued Payment of Remuneration for Unvaccinated Employees due to Covid-19 Quarantine

Compensation for loss of earnings due to Covid-19 quarantine

An official quarantine order requires employees to isolate themselves and hinders them from working, unless they can work from home. Consequently, according to the principle of “no work, no pay”, their claim for remuneration generally lapses for the duration of the quarantine.

With regard to quarantine due to Covid-19, the legislator had initially decided that employees who are quarantined by the authorities should not suffer loss of income. Therefore, the Infection Protection Act provides for compensation: The employer pays out the compensation to the employee through regular payroll and is reimbursed by the state.

As of 1 November 2021 – statutory compensation is restricted to vaccinated employees

As of 1 November 2021, unvaccinated employees are no longer entitled to receive such compensation for loss of earnings if they have to go into quarantine due to Covid-19 and therefore suffer a loss of income. The background of this change is the sufficient supply with Covid-19 vaccines and the intention to further intensify the vaccination campaign.

Distinction between quarantine and incapacity for work due to sickness

However, employers must distinguish between quarantine and incapacity for work due to sickness. If employees become incapable for work due to an infection with the Coronavirus, they are entitled to continued payment of remuneration according to statutory law regardless of their vaccination status. Accordingly, it is necessary to distinguish between quarantine where the employee is still capable of working and quarantine where the employee is at the same time incapable for work. In the latter case, the statutory entitlement to continued payment of remuneration precedes, given that the employee fulfilled his obligations of notifying and proving the incapability for work. This requires submitting a certificate of incapacity for work issued by a doctor if the incapacity exceeds three days or any different time period specified in the employment contract. The quarantine order issued by the authorities is not sufficient as proof of an incapacity for work, but a separate doctor’s note is required.

Is the employer allowed to ask about his employees’ vaccination status?

As employers used to pre-finance the continued remuneration for employees during Covid-19 quarantine and then file for state compensation, the cancellation of the state compensation for unvaccinated employees further fuels the already ongoing debate of whether employers are allowed to ask about an employee’s vaccination status. Only this knowledge will enable them to do a proper payroll if an employee has to quarantine and cannot work as a result.

For a few occupational groups (e.g. teachers and nurses) there is already a statutory right for employers to ask about Covid-19 vaccination status. However, outside of these fields, employers currently do not have a general right to ask employees about their vaccination status, as employers are generally not allowed to request health data about their employees.

The legal situation in the case of employees in Covid-19 quarantine as of 1 November 2021 is not yet fully clarified. However, the more convincing arguments speak in favor of allowing the employer to ask about the employee’s status of vaccination in the specific constellation that the employee has to quarantine based on an official order, is not able to or entitled to work from home and is also not incapacitated from work due to sickness. The first federal data protection commissioners have affirmed this approach.

Key Action Points for Human Resources and In-house Counsel 

  • Unvaccinated employees will no longer receive continued remuneration for periods of Covid-19 quarantine.
  • Apart from a few statutory exceptions, employers are not allowed to ask about the employee’s status of vaccination. However, there are strong arguments that employees must disclose their vaccination status when claiming continued remuneration for quarantine as of 1 November 2021.