Coronavirus Pandemic & Works Council.

 Questions and Answers for Employers on Corporate Co-Determination in Times of Crisis

Coronavirus Pandemic & Works Council, Insight by Dr. Lelley, Lawyer at Kanzlei Buse Heberer Fromm

Even in these months of the coronavirus pandemic, the co-determination of the works council takes effect. But especially in times of crisis such as these, it is vital for companies to know the contents and limits of co-determination in detail. In this way, employers can be certain to stay in the driver seat in their company.

Question: What are the new tasks for the works council during the coronavirus pandemic?

Answer: The works council needs to keep an overview of the current development of the coronavirus pandemic inside and outside the company. In doing so, it is important to keep in mind, among other things, whether employees of the company are already affected, which employees belong to a risk group and to what extent public business can still take place in the company. Because the works council will need to discuss these kind of questions with the employer in good time.

Question: What does the works council need to do if an employee falls ill with Covid-19?

Answer: If an employee falls ill, the employer will inform the colleagues on a regular basis. In addition to information about the disease, it may be necessary to take further measures. 

Question: Does the works council have a right of co-determination regarding measures the employer wants to take (e.g. certain hygiene regulations)?

Answer: Yes, the works council’s right of co-determination results from Art. 87 Para. 1 No. 1 Works Constitution Act Law (BetrVG). In this article, it is granted a right of co-determination regarding the company’s organization and the employees’ conduct. With each measure, however, the proportionality is always to be taken into account.

Question: Can the works council itself demand protective measures?

Answer: As long as the employer does not take any or insufficient protective measures for its employees, the works council can approach the employer with its own proposals after consultation with the employees. But nothing more.

Question: Does the works council have a right of co-determination regarding the transfer of work to home office?

Answer: This depends on whether there is a works agreement on home office work. If so, the employer may send its employees to work from home. If there is no such agreement, employees could object to a “transfer” to work from home. If there is a risk of infection, the employee must respect the employer’s rights and work from home.

Question: Is the employer exceptionally entitled to order that the works council’s work takes place in the home office?

Answer: No. The works council is not bound by instructions from the employer, but makes decisions independently. Therefore, it can determine the time and place of its work itself.

Question: Do the members of the works council have to meet in person to adopt resolutions?

Answer: Yes. According to the view of the majority of legal experts, members of the works council have to meet in person to adopt resolutions. This is derived from Article 33 of the Works Constitution Act and a reverse conclusion from Article 41a Paragraph 2 of the German act on European Works Councils. However, this view is not very practicable and has been outdated for a long time. Therefore, it is up to the legislator to make a more flexible regulation as soon as possible (e.g. telephone or video conferences).