Are employees allowed to stay at home due to coronavirus?
Employees who fall ill with the coronavirus are allowed to stay away from work. But what about those who simply worry about infection? In terms of labour law, the situation is clear: just not turning up is not an option. This would constitute a refusal to work, which could lead to a warning and possibly even to termination. Even in the case of illness of relatives, there is no corresponding right. As long as employees themselves do not show any symptoms of influenza or symptoms of coronavirus and have not been put in quarantine, their personal obligation to work remains in place.
What is worth mentioning is the current information from the Robert Koch Institute: Not all diseases after infection with the novel coronavirus take a severe course, even in most cases that were reported in China the course of the disease was mild. So far, the majority of deaths have occurred in patients who were older and/or who had previously suffered from underlying chronic diseases. These estimates also apply to the flu that is known here. And during the flu season, no employee would think of staying at home without specific agreements with the company. The omission of the obligation to work would at least presuppose that the company would not take any protective measures despite concrete infections and despite requests from authorities or the works council.
What prevention obligations arise for the employer?
The employer must ensure that the employees are protected against risks to their health. This obligation always applies, regardless of a pandemic. However, as soon as official information is received that the public space is to be protected against spreading by special measures, the employer’s obligation becomes more concrete. The employer is then obliged to implement these measures accordingly. Failure to do so could result in a right for employees to refuse work.
„The employer must ensure that the employees are protected against risks to their health. This obligation always applies, regardless of a pandemic.“
Employers are legally obliged (§ 618 German Civil Code (BGB), § 62 German Commercial Code (HGB)) to set up and maintain rooms, devices and equipment which they have to make available for the performance of the services. The services are to be regulated in such a way that the employee is protected against dangers to life and health as wellas possible. Thisalways depends on the nature of the business and on what the work permits. The duty of care includes, among other things, that hygiene regulations are complied with and that measures are taken to prevent the spread of diseases. Disinfectants should be provided at entrances, in toilets, in kitchens and meeting rooms, as well as instructions for regular use, etc.
Do companies need to inform their employees separately?
First of all, employers may gather information themselves. They can always ask whether a sick employee has been in a risk area. If employees return from a risk area, employers can order them to stay at home for a few days to avoid possible infection. During this time, remuneration must continue to be paid. In connection with the risk of sickness in a pandemic, article 12, paragraph 1 German Occupational Safety and Health Act and article 81, paragraph 1, sentence 2 Industrial Relations Law should be considered in particular. These laws impose on the company the obligation to inform employees sufficiently and appropriately about safety as well as accident and health protection. In addition, employers have the duty to inform their employees about the risks of infection and illness, in particular if an employer is already aware of concrete indications of such risks (e. g. if there are colleagues traveling to or coming from China).
What can the Employer Order?
Whether the employer is allowed to order for example a collective home office is determined by whether the order respects the “reasonable discretion” according to § 106 Trade Regulation Act. According to a ruling of the Berlin-Brandenburg State Labor Court of November 14, 2018 (17 Sa 562/18), employers are not entitled to assign telecommuting (i.e. work in the home office) to employees merely based on their right to issue instructions under their employment contracts. This case affected the constellation that the employer wanted to transfer the employee to the home office permanently. In case of a danger to health due to physical presence in the company, another situation arises. The order would be unproblematic if the employer was already granted the right to transfer the employee locally according to the employment contract.
The order for a business trip must also be based on “reasonable discretion”. For example, if there is a travel warning from the Ministry of Foreign Affairs (currently only for Hubei Province, in which the city of Wuhan is located), an ordered business trip to China is no longer likely to be considered”reasonable discretion”. In other cases, the employee’s individual situation, e.g. a previous illness, may be a factor and lead to the employee being able to refuse the trip.
Employers can assign overtime work to those who are able to work overtime, if otherwise a project or an order threatens to fail due to illness-related understaffing. Due to their general duty of loyalty, employees are obliged to work overtime in such an “unforeseeable emergency”. Employees can even be obliged according to article 241 paragraph 2, article 242 of the German Civil Code to perform work that is no longer covered by the employer’s right of direction.
Is There a Right to Payment in Case of Quarantine?
Authorities can take measures in extreme cases to prevent the further spread of diseases. For example, they can issue employment bans or order surveillance or quarantine. In such cases, there is no entitlement to continued payment of compensation. The affected employee is, however, entitled to compensation in accordance with article 56 (1) Infection Protection Act, which is based on the amount of sick pay entitlement.