Flu season and labor law: What employers need to know about prevention and absences from work.

 Regulations and case law concerning flu vaccination, absence cover and sick children.

Dr. Yuanyuan Yin

Grippezeit und Arbeitsrecht: Wissenswertes für Arbeitgeber über Prävention und Arbeitsausfall.

Regardless of the corona pandemic, thousands of people fall ill with influenza every year. Cold viruses or having to care for sick children lead to increasing numbers of absent employees, especially during the cold, wet months at the beginning of the year. What are the common labor law issues?

Particularly larger companies often offer their employees voluntary flu vaccinations at the company, in part as a means of preventing absences. But what happens in the event of complications?

1. Complications following a company flu vaccination – are employeesentitled to compensation?

The Landessozialgericht (Regional Social Court) in Mainz reached a landmark decision in September last year: If employers offer voluntary vaccinations, employees are not entitled to claim compensation from the employers’ liability insurance association if they suffer severe complications.

In this specific case, a catering manager who worked for a limited liability company with various catering outlets, including the kitchen at a clinic, took his case to court. The hospital owner provided free influenza vaccines to all employees with patient contact. The employees were informed that the vaccination was voluntary. The complainant received the vaccination.

The employee fell ill years later

Several years later, he developed an idiopathic autoinflammatory process, along with other complaints. The catering manager ascribed this to the vaccination, and demanded compensation payments from the employers’ liability insurance association. The insurance association refused compensation. The case brought before the Sozialgericht (Social Court) was also unsuccessful.

The voluntary nature is decisive

The Regional Social Court in Mainz held the same opinion, and also ruled that the subsequent illness did not represent an occupational accident. The key arguments:

  • Receiving the flu vaccination was voluntary.
  • The vaccination did not represent an objective primary or secondary obligation arising from the employment relationship.
  • Neither the collective bargaining agreement nor the employment contract gave rise to an obligation to receive the vaccine.
  • The employer had not instructed the employee to receive the vaccination within the scope of its right to issue instructions.
  • Alone the complainant’s subjective idea that the vaccination was also in his employer’s interest is inadequate.
  • Nor was the immunization necessary due to an increased risk of infection as part of the job because the catering manager did not have direct contact with patients.

A pediatric nurse who became severely ill after being vaccinated against swine flu was a different situation. The Social Court in Mainz regarded this as an occupational accident because the clinic had strongly recommended immunization. In addition, the immunization had also been strongly recommended by the Standing Committee on Vaccination for Health Care Workers.

Claim for compensation in the case of a corona vaccination

If a company offers its employees immunization against COVID-19, they are entitled to compensation in accordance with Section 60 Infection Protection Act (IfSG) in the event of vaccination damage pursuant to Section 2 No. 11 Infection Protection Act. As such, there is no question as to whether this represents an occupational accident.

Preventing liability risks

The communication leading up to company vaccinations requires particular care with a view toward possible liability risks: Companies need to clearly state that the flu vaccination is a voluntary offer, and not mandatory for employees. According to the Federal Labor Court, the company doctor who carries out the vaccinations must be properly and carefully selected to ensure that the employer is not required to assume responsibility for any incorrect medical advice. It is also advisable to have an external doctor handle the vaccination and the invitation process rather than a company doctor. This serves to clearly indicate that a treatment agreement between the employer and employee is not intended.

2. Can managers order an employee to work overtime to cover for a sick colleague?

Collective bargaining agreements, company agreements or employment contracts generally stipulate that employers may order employees to work overtime. According to the Federal Labor Court, the following applies: Clauses of this nature are only valid if employees can clearly see the maximum amount of work they can expect. Without corresponding agreements, managers may only order employees to work overtime without the consent of the works council or the employee in genuine emergencies. For example, if a truck delivery is delayed due to a traffic jam. Sick colleagues are not a justifiable reason. However, pending deadlines may mean that some work cannot simply be left undone. In this case, colleagues have to take over the work to the best of their ability. In this case, the practical solution is for managers to distribute the additional work caused by having to cover for the absent colleague among several other employees where possible, and to show their appreciation for the employees’ extra effort. Exceptions apply to pregnant women and nursing mothers: According to Section 4 Maternity Protection Act, they may not work more than eight and a half hours a day.

3. How long may parents caring for sick children remain at home?

When children under the age of twelve become ill, parents face the challenge of deciding who will take the child to the doctor and look after them at home. If the employment contract or collective bargaining agreement does not contain a corresponding provision, then employees are entitled to time off work and sick pay in accordance with Section 45 (2) sentence 1 German Social Code Book V (SGB). Employees are entitled to up to ten working days per child per calendar year and single parents are entitled to up to 20 days. This requires that no other member of the household is able to stay home with the child. As such, both parents should share the care. The age limit of twelve years old does not apply to children who are dependent on aid or have a disability.

Due to the Corona pandemic, exemptions apply until March 19, 2022:

  • Married couples are entitled to 30 sick days per parent per child.
  • In families with more than two children, the entitlement is limited to a maximum of 65 days.
  • Single parents are entitled to a maximum of 60 sick days to care for their children.

4. Continued payment of wages while caring for sick children

Companies are not legally obliged to grant employees time off with full pay. Collective agreements, company agreements or employment contracts often stipulate how many days employees may remain at home with full pay while caring for their sick children. Companies may even entirely exclude the payment of wages with clauses are such as: “Only work actually performed will be remunerated.” Or: “Section 616 German Civil Code (BGB) is explicitly excluded.” Regardless of the case, Section 45 German Social Code Book V stipulates that people with statutory health insurance are entitled to children’s sickness benefits, which generally amounts to between 70 and a maximum of 90 percent of the gross earnings.

If an employee becomes ill after receiving a voluntary flu vaccination offered by their employer, they are not generally entitled to compensation on the grounds of an occupational injury. To reduce liability risks, the communication and the selection of doctors to perform the immunization require particular care.
Whether overtime for sick colleagues or sick children: the ideal solution is to ensure that labor law issues never even arise. Employees appreciate companies that prevent capacity shortages during the flu and cold season through suitable personnel planning and well-planned absence cover regulations. If possible, parents need to work as a team to distribute the work among themselves, where necessary.