international employment law firm alliance L&E Global
Germany

5. Managing COVID-19-Related Employee Issues

Management of quarantine, childcare and medical leave for employees affected by COVID-19.

Regarding quarantine, the applicable rules mainly depend on whether the employee is actually ill during this period. If the employee is ill during quarantine, he is to be treated the same as any employee on regular sick leave and is entitled to continued remuneration for a period of up to six weeks. This continued remuneration is paid by the employer. If an employee is quarantined only as a precautionary measure, but is not actually ill, he is not on sick leave. The employer is still obligated to continue paying the employee, but may request compensation from the authorities under the German Protection against Infection Act. If the employee has the option of telework and is not ill during quarantine, he remains obligated to work.

If the employee cannot arrange necessary childcare by others, despite reasonable efforts by the parents, the employee has the right to refuse to work, though an entitlement to continued remuneration towards the employer is only possible under narrow conditions and then only for a short time, for just a few days. However, under a new provision in the German Protection against Infection Act, which was introduced in light of COVID-19, employees can apply for a state compensation payment in the amount of 67% of their lost net earnings (max €2,016 per month). This claim initially existed for a duration of 6 weeks, but was recently extended for up to 20 weeks.

Employees who fear infection and refuse to work.

The employee can only refuse to work without breaching his contract, if it would be unreasonable for him to work. This requires a considerable, objective danger for the person concerned or at least serious objectively justified suspicions of danger to life or health. For example, the mere coughing of colleagues will probably not suffice.

Disclosure of employees who are infected.

The coronavirus is subject to the official obligation to notify the authorities in accordance with the German Protection against Infection Act. When a doctor suspects a case, he must immediately inform the responsible health authority, giving the personal data of the patient, as it has extensive authority to initiate measures to combat the disease, including in the employer's company. There is no obligation for the employer to inform authorities of an infection. This will not be necessary in any event as the doctor/lab carrying out the testing will notify authorities.

For data protection reasons, the employer may in principle not disclose the name of infected employees to third parties/the workforce. Instead, this would normally have to be anonymised. The authorities may however approach the employer to identify contact persons, which may then need to be disclosed in order to follow up on infection chains.

Other issues.

If authorities close down worksites because of the coronavirus, the employer must continue to pay its employees. This is because the employer bears the operational risk, whilst employees retain their remuneration entitlement even if they are unable to work. However, the employer may have a claim for reimbursement against the authority according to the German Protection against Infection Act. In addition, employers may have the option of applying to the Federal Employment Agency for short-time work benefits. Short-time work can be ordered for a maximum of one year. As mentioned above, the amount of the short-time working allowance is in principle 67% of the salary with extended entitlements in 2020 for lengthy periods of short-time work. Companies and businesses must apply with their responsible employment agency for short-time work, if necessary.

 

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