Coronavirus: Special rules of conduct in employment relationships

The number of new infections caused by COVID-19 (Coronavirus SARS-CoV-2) is increasing, with the Robert Koch Institute now confirming several hundred cases in Germany. Understandably, employees are increasingly worried about becoming infected at work.

Employers and employees alike are considering what special rules of conduct and courses of action are available to them in view of the ongoing spread of the coronavirus.

I. Rights and duties of employees

As a general rule, employees continue to be obligated to perform their work despite possible concerns about infection. They may not be absent from work solely out of fear of the coronavirus and for purposes of self-protection. The parties to an employment contract may, however, agree to release the employee from work by mutual consent without payment. Granting leave at the employee’s request is another option of taking individual concerns about infection into account.

• Employees have no claim, however, against their employers to be permitted to work from a home office. In accordance with Section 611a Civil Code, Section 106 Industrial Code, employers are deciding on content, place, and time of work performed at their reasonable discretion. Claims to work in a home office may only arise as a matter of exception from employees’ employment contracts or from a relevant collective agreement.

• Work performance also includes business trips. There is no general right to refuse performance even for trips to areas with cases of infection. As long as there are no travel warnings issued by the Federal Foreign Office, employees may not refuse the performance of their services on the grounds of unreasonableness under Section 275(3) Civil Code. They would have to demonstrate specific perils, such as previous illnesses putting them at particular risk. At a minimum, employees should notify their employers of particular health risks, since employers are obligated to protect their employees’ health.

In case of an infection with the coronavirus, employees are obligated to notify their employers of their incapacity to work without delay. While in general employees do not have to inform employers of the nature of the illness, in cases of infection with the coronavirus, however, a duty to inform the employer about the type of illness may arise from employees’ general fiduciary duty under employment law – this, in particular, if there is a possibility, which is not only abstract, that they may already have infected other colleagues or customers. This disease is highly contagious and dangerous and requires appropriate protective actions against its spread.

• If employees are unable to work as a result of illness, they are entitled to continued payment of remuneration according to Section 3(1) sentence 1 Continued Remuneration Act. Those claims may only be considered, however, where employees are not at fault for the illness. Such fault is to be presumed, for example, where employees violated travel warnings issued by the Federal Foreign Office on private trips.

• There are no claims to continued payment of remuneration, however, where an infection is suspected. The competent authorities may take actions to combat communicable diseases and may place sick persons under observation or even quarantine (Sections 29, 30 Infection Protection Act). Additionally, a ban on professional activity can be issued in accordance with Section 31 Infection Protection Act. In these cases, if the employee suffers a loss of earnings, he/she has a claim for compensation in accordance with Section 56(1), (5) Infection Protection Act. The employer is obliged to pay this compensation in advance. However, he may request reimbursement from the competent authorities on application.

In the event that schools and pre-schools are closed as a precaution against the coronavirus, parents may arrange for care for their children. Their claim to continued remuneration is based on the general principles of Section 616 Civil Code. Unless the claim is contractually excluded, remuneration will therefore only be paid for a relatively insignificant period of time.

If public transport is shut down, employees are supposed to look for alternatives, as the risk of travel lies with employees. In this case, employers could require employees to make up for work at a later time or may otherwise deduct absence times from remuneration.

II. Rights and duties of employers

Employers are entitled to issue instructions to determine content, place, and time of work performance in more detail at their reasonable discretion. Additionally, employers have a general fiduciary duty (Section 241(2) Civil Code) and a special duty of care (Section 618 Civil Code) towards their employees.

In the event of a pandemic, special provisions apply with regard to employers’ duties of protection. Employers may be obligated to take special protective actions and may have to draw up specific protection concepts to meet their duties. In the event of further increases in the risk situation, it may, therefore, become necessary to draw up a “pandemic plan” or, as a precautionary action, to conclude a general works agreement for the event of a pandemic.

• Special protective actions include precautionary and educational actions. Employers should inform employees about correct hygiene habits.

They should encourage employees to conduct themselves according to the instructions of the Robert Koch Institute, in particular, to wash or disinfect their hands regularly. In their own interests, employers could provide disinfectants or respiratory masks to contain possible transmission paths.

• Precautionary and educational actions must be measured against the principles of proportionality. In the absence of an acute risk situation, there is at present no general need to wear mouth protection in the workplace or to prohibit direct contact between employees. This may be necessary in special cases, however, such as for work in the health or transportation sectors, or if the risk situation becomes more acute.

Where employers are aware of employees’ illnesses or at least have specific indications of infection risks in the company, they must notify their employees about the existing risks of infection and illness. Moreover, employers must provide information about preventive actions and necessary conduct. To meet their information and educational duties, employers may, in particular, ask whether employees who are ill have recently been to a high-risk area and should ask employees to report any such trips and to contact the employer by phone or email prior to returning from a high-risk area.

For suspected serious cases of corona, employers are strongly advised to notify the public health department in accordance with Section 6(5) Infection Protection Act because of the extremely high risk of spread of the infection. All cases (persons under further investigation, probable causes, and confirmed cases) are to be reported by name to the competent health authority.

• The relevant employee should remain separated from other persons until a suitable corona testing site can be reached.

The relevant employee should be released from work on paid leave until the test results are available. Additionally, the circle of persons who were in direct contact with the relevant individual should be determined through appropriate interviews. They must also be directed to a corona test centre.

• Finally, employers must take actions to protect all other employees in the event of a specific danger situation. If provided for by the employment contract, employers may order work to be performed from a home office. Otherwise, employers may at any time agree with their employees on a voluntary basis that they work from a home office for this special situation.

If a large number of employees are absent, employers may consider short-time work to reduce staff costs and thus mitigate the financial consequences for the company. Conversely, employers may require the remaining employees to work overtime to properly complete projects or assignments on time.

In the worst case of necessary company closures, employees would have to be released from work with pay until the danger has passed. The obligation to pay remuneration continues to apply because the employees affected by the closure are able and willing to work while not being employed on grounds that are attributed to the employer’s sphere of operation. A quickly arising epidemic situation will regularly not justify the ordering of company vacation periods either. Employers may not insist that working hours lost as a result of closure be made up for at a later time.

In cases of officially ordered employment bans or quarantines, employers may apply for reimbursement by the competent authority (see above) of the compensation payment made to affected employees.

III. Conclusion

In view of the progressive spread of the coronavirus, special precautions are now advisable both for employers and employees. It should be possible to agree amicably on many of these actions in the sense of reasonably interacting with each other in view of the common interest of avoiding infections.