Due to current events, we are sending you answers to the most frequently asked labour law questions about coronavirus in the last week.
Official order of a shutdown
In Germany, it is permissible to order the closure of an establishment by means of an official order. The closure falls within the employer’s sphere of risk. The employer’s operational risk is defined as all circumstances which make it impossible for the management of the work and its acceptance by the employer for operational reasons. The disturbance of the business need not necessarily be caused by the employer. If the company is closed down by order of the authorities due to the coronavirus, the employees cannot perform their work. However, they will continue to receive their wages, as these circumstances fall within the employer’s operational risk.
Closure of the company by the employer
If an employer decides to close the business due to suspected cases of infection or infection among employees or due to supply bottlenecks, the employer continues to owe its employees their wages. The ordering of compulsory leave or company holidays is not permitted. In this case, too, it is part of his operational risk if he has to close the company. Priority should be given to solutions such as ordering work in the home office, reducing overtime or ordering short-time work in the event of absences. These measures may already be sufficient in individual cases and operations can be maintained at least partially.
Risk of infection – does the employee have to show up for work?
The mere danger or fear of infection does not entitle the employee to stay away from work. If the employee does not appear without excuse, he can be warned and in case of repetition even dismissed. If there is a suspected or proven case of corona virus infection in the company, in addition to closing down the company, the order of a home office can be an effective means. In this way, the operation can be maintained at least in part.
Breakdown of public transport (ÖPNV)
If public transport is cancelled due to a possible pandemic, the employee must still ensure that he or she arrives at work on time. The risk of travelling is borne by the employee. Delays must be made up for. If the employee is unable to arrive at work by means other than public transport and therefore does not perform his or her work in accordance with the contract, the salary may be reduced accordingly. However, a warning letter is out of the question here, as the employee is not responsible for the delay or failure to appear at work.
Closure of kindergartens and schools
As has already happened in some risk areas, the closure of schools and daycare centres may be necessary to contain the spread of coronavirus. Here, the employee may only stay at home paid to look after his child if supervision or care is necessary and other suitable supervisors are not available. Older, healthy schoolchildren who are able to look after themselves have no need for care. If grandparents are available, younger children must be looked after by them.
In principle, the employer may currently continue to send the employee abroad, especially if the employment contract provides for travel abroad. However, the obligation to travel abroad is not unlimited. The ordering of trips to regions for which there is an official travel warning no longer corresponds to the employer’s reasonable discretion. Business trips to Italy can currently still be ordered as permitted. However, the individual situation of an employee, particularly in the case of pre-existing illnesses, may mean that it is no longer within the employee’s reasonable discretion to send him/her to risk areas. In this case, a balancing of interests can lead to the employee being entitled to refuse the business trip.
Employer’s duty of care
Employers have a general duty of care towards their employees, which currently obliges them primarily to provide information about the risks of infection and illness and to supervise compliance with hygiene regulations. It is recommended to make disinfectants and mouthguards available in the company. In case of suspicion that an employee has become infected, he should be sent home and a medical examination should be ordered.
Obligations of loyalty of the employee
The employee’s fiduciary duty obliges him or her to help out with the work and to work overtime when colleagues are absent due to illness. In case of suspected infection with the coronavirus, the employee is not obliged to inform his employer. The doctor treating the employee informs the competent authority, which in turn informs the employer. It is advisable to ask employees to inform the human resources department or their direct superior at least in the case of a proven infection. However, the employee is not obliged to comply with this.
Payment of remuneration
If an employee falls ill with coronavirus, the German Continued Remuneration Act (Entgeltfortzahlungsgesetz) applies and the employee is entitled to continued remuneration for a period of six weeks.
If the employee is quarantined by order of the authorities and cannot work for this reason, the situation is initially different. In the event of an employment ban under infection protection law due to suspected infection with the coronavirus, the employer may reduce the wage accordingly. The employee subject to the ban receives compensation for loss of earnings in accordance with the German Protection Against Infection Act (Infektionsschutzgesetz), which corresponds to the right to continued remuneration.
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