Germany: Employing Ukrainian Refugees and other Employment Law aspects of the Ukraine War
Employment of Ukrainian refugees
With more and more Ukrainian refugees coming to Germany, the question arises as to how they can be employed, be it temporarily or long-term. In the course of the Ukraine war, immigration and residence laws on the EU and German levels have been simplified to facilitate access to the labour market.
Until 23 May 2022, the so called “Ukraine Residence Temporary Regulation” (Ukraine-Aufenthalts-Übergangsverordnung), issued by the Federal Ministry of Interior, applies. This regulation provides for special rules for refugees from Ukraine arriving in Germany.
Accordingly, the following persons do not need a residence permit to enter and stay in Germany until 23 May 2022:
- Foreigners (also non-Ukrainian nationals) who were in Ukraine on 24 February 2022.
- Ukrainian nationals living in Ukraine, who were temporarily not in Ukraine on 24 February 2022. This also applies to refugees recognised as such in Ukraine and persons who are granted international or national protection in Ukraine.
- Ukrainian nationals who were already legally residing in Germany on 24 February 2022.
Important: Employment in Germany is not allowed without a residence permit. Hence, refugees from Ukraine legally entering Germany without any further proceedings, need a residence permit to take up employment in Germany.
Application for a residence permit
Taking up employment in Germany is only possible for people holding a residence permit. A long-term residence permit can be received by anyone from the above-mentioned groups until 23 May 2022. There are two different types of residence permit that can be applied for:
1) Residence permit for temporary protection
The majority of refugees from Ukraine will be eligible for a residence permit for temporary protection according to section 24 of Germany’s Residence Act (Aufenthaltsgesetz). If a person meets the requirements for a residence permit for temporary protection, such a permit must be issued and cannot be denied by the authorities. The following persons are entitled to a residence permit for temporary protection:
- Ukrainian nationals who have been living in Ukraine before 24 February 2022. The citizenship can e.g. be proven by a passport, passport substitute or Ukrainian identity card.
- Stateless persons and third-country nationals who were granted international or national protection in Ukraine before 24 February 2022. Such status can be proven by means of a Ukrainian travel document for refugees or “Travel Document for Person Granted Complementary Protection”.
- Family members of the above-mentioned persons.
- Stateless persons and third-country nationals, who legally stayed in Ukraine before 24 February 2022 based on permanent residence permits issued under Ukrainian law and who are unable to safely return to their home country.
- Third-country nationals who were legally staying in Ukraine (not only temporarily for max. 90 days) before 24 February 2022 and who are unable to safely return to their home country.
- Ukrainian nationals who have already been staying in Germany if the extension of their residence permit is not possible or the reason for granting is no longer given.
- Temporary protection shall also be granted to persons who have already fled to the EU before 24 February 2022 due to the Ukrainian-Russian conflict and cannot return due to the war.
The application for the residence permit for temporary protection must be submitted to the local foreigner’s authority (in some places it is possible to apply online, elsewhere a personal appearance is necessary). The foreigner’s authority of the applicants place of residence in Germany is responsible. If there is no permanent place of residence so far, the authority at the current place of stay is in charge. Applicants receive a provisional certificate before they receive the long-term residence permit. Refugees may be employed as soon as they can provide a provisional certificate (stating “employment granted”) or the long-term residence permit.
Important: Employers are not allowed to employ refugees from Ukraine until they can provide a provisional certificate (stating “employment granted”) or a long-term residence permit. Severe fines are imposed for any violation. A copy of the residence permit must be kept by the employer for the duration of employment.
Switching to another residence status remains possible for Ukrainian refugees. Therefore, refugees who have already applied for a residence permit for temporary protection can also apply for a so-called “Blue Card”, which after 21 months allows to apply for and be granted a permanent residence permit.
2) “Regular” residence permits
For people not fulfilling the above-mentioned criteria, it remains possible to apply for “regular” residence permits. This particularly applies for third-country nationals, who can return to their home countries and therefore do not belong to the privileged groups. These persons are not entitled to a residence permit for temporary protection. However, they can apply for a regular residence permit, e.g. a residence permit for the purpose of employment may be granted if a job offer is available. This in particular gives skilled workers the opportunity to receive a residence permit. Such skilled workers are employees that completed a vocational training or university degree that is considered equivalent to a German degree. Another option is to gain a resident permit for jobs where Germany has a shortage of suitable applicants (e.g. in information technology).
Potential issues in German employment relationships
The Ukraine war can also affect existing employment relationships in Germany. We have collected and answered the most important questions with regard to conscription of Ukrainian nationals and dealing with political opinions.
Conscription of Ukrainian employees for military service
Ukrainian nationals working in Germany can be conscripted for military service. If they leave Germany to serve in the Ukrainian army, their German job is protected. This follows from section 16 of the Law on Protection of Employment in the Event of Conscription to Military Service (Arbeitsplatzschutzgesetz), because Ukraine is a party of the European Social Charta of 1961.
This means, the employment relationship with Ukrainians being conscripted for military service is suspended with regard to the main duties, e.g. particularly concerning the employer’s obligation to pay remuneration. This applies from the date of the conscription notice. However, this does not include volunteers. A dismissal based on the conscription is null and void. The workplace must be kept free. A temporary lack of workforce can be filled by means of fixed-term employment.
Nevertheless, the law does not provide for a total protection against dismissal for conscripted employees. If the war leads to other disruptions of the employment relationship beyond the absence, an effective termination remains possible, e.g. for operational reasons. Particular issues may arise with regard to the notice of termination. Dropping the notice in the mailbox is likely not to be sufficient if the employer is aware of the conscription for military service. This does not only apply to Ukrainian nationals, where a dismissal might not be considered under the current circumstances, but also to Russian nationals. If the employer terminates the employment relationship, he bears the burden of proof that it was not the conscription that caused the termination. However, fixed-term employment contracts run and expire regardless of the conscription.
Dealing with political opinions
Some employers are faced with employees who openly approve and support the Russian attack on Ukraine. Dealing with such cases can pose employment law issues, because the employee’s freedom of speech must also be respected in the workplace. Even if this was desirable, employers are generally not allowed to require employees to take a specific position or opinion with regard to the Ukraine war. This would go beyond the duties arising from the employment relationship. Therefore, expressing a deviating political opinion in private life generally does not qualify as misconduct. In individual cases, however, a valid dismissal might be possible if mutual trust is seriously impaired as a result of a particular attitude or behavior. In particular, a dismissal could be considered if an employee voices political opinions in an occupational context and thus significantly damages the employer’s reputation.
Key Action Points for Human Resources and In-house Counsel
- Employers are only allowed to employ Ukrainian refugees holding a provisional certificate (stating “employment granted”) or long-term residence permit. A copy of the residence permit must be kept by the employer for the duration of employment.
- The conscription of Ukrainian nationals suspends existing employment relationships in Germany. Their place of work must be kept free, but can temporarily be filled by means of fixed-term employment. A dismissal of a conscripted employee cannot be based on the conscription itself.
- In exceptional cases only, will a dismissal of an employee who voices political opinions in a professional context and makes statements that are considered damaging to the company’s reputation, be considered.