Today‘s post is intended to give you further guidance in this very dynamic development, for example on the topic of short-time work and other discussed instruments to get through the crisis.
1. COMPANY HOLIDAYS
Without an express agreement in the employment contract, the employer – by virtue of its right to issue instructions – may unilaterally order (paid) company holidays provided there are urgent operational reasons. We believe that such situation exists in case of plant closures due to Corona. However, 2/5 of an affected employee’s holidays should remain, to be taken in the employee’s free discretion. Where a works council exists, its pre-approval has to be obtained, also with regard to the timing and duration of the company holidays. Collective agreements, works agreements and employment contracts may already contain provisions which have to be observed when ordering company holidays.
2. MOBILE WORKING
In any circumstances, the employer may temporarily issue instructions for mobile work, i.e. to determine unilaterally the place where the work is to be carried out. In this case, the employer has a right to issue instructions in accordance with § 106 of the German Industrial Code in conjunction with the employment contract. The employer consequently in principal may determine where the work is to be carried out. This right is subject to potential restrictions in the em-ployment contract. Both by concept and under law, mobile working is not identical to a so-called home office, i.e. a workplace permanently installed in the employee‘s home. Stricter rules
apply to this „home office“, e.g. with regard to occupational health and safety; additionally, a specific agreement with the employee is required.
Mobile working is not permitted on a permanent basis or for a longer period of time. Otherwise a home office solution would ultimately be introduced against the employee’s will. In case of the Corona pandemic, however, such measure is on a temporary basis only and additionally not per se does require the employee from a permanent working place at home (but merely from another place than the office). Additionally, such working order does not grant the employer access rights to the employee‘s home. The instruction furthermore is aimed to serve the protection of all employees’ health and the company’s proper functioning. In issuing this temporary preventive measure, the employer fulfils its duties of protection and care. All this strengthens the case for such unilateral order’s admissibility by the employer.
If a works council exists, the works council’s co-determination rights have to be observed. To give just two examples: ordering mobile work and thus the allocation of another work area
represents a transfer requiring approval in the sense of Sec. 95 (3) Betriebsverfassungsgesetz (BetrVG), provided such measure is expected to last longer than one month. If the mobile work equipment is connected with the employer’s IT structure and, for example, enables recording of the working time, the works council also has a co-determination right pursuant to Sec. 87, Subsection 1, No. 6, BetrVG.
3. REMUNERATION: ILLNESS, RISKS FROM COMMUTING, QUARANTINE, OPERATIONAL RISK AND REDUCED WORKING HOURS
a) Employee’s Illness
Where an employee falls ill as a result of a corona infection, the employee in principal is entitled to a continued remuneration for a duration of six weeks (Sec. 3 of the Continued Remuneration Act (EFZG)) provided the employee has not culpably caused his or her inability to work, e.g. a trip to a risk area despite a travel warning. Employers employing no more than 30 employees in the ordinary course of business receive a reimbursement of 80% of the continued remuneration including social security contributions from the health insurance funds pursuant to Secs. 1, 2 of the Remuneration Act (AAG) in the amount.
b) Risks from Commuting
Employees lose their entitlement to remuneration without compensation if, for example, they are unable to start work or cannot start work on time due to a restriction in public transport.
c) Quarantine,
Intervention by Governmental Act
Probably largely unknown are the effects of the Infection Protection Act (IfSG). According to Secs. 30 and 31 IfSG, the competent authority may issue a quarantine order or a professional ban on work for „emitters, suspects of an infection or a disease“. In this case, the employer is not obliged to a continued payment of wages. The employee is entitled to a compensation pursuant to Sec. 56 IfSG. For up to six weeks, the employee is entitled to compensation in the amount of the loss of earnings and, from the seventh week onwards of the amount paid for sick leave, but limited to € 109.38 per day (as of 2020). During the first six weeks, the employer is responsible for paying the compensation but receives, where an application has been filed accordingly, a corresponding refund according to Sec. 56 (5) IfSG.
d) ‚Voluntary‘ Closure
In case the employer decides autonomously to partially or completely close the business, the employer remains under the obligation to continue wages due to the fact that the employer has to bear the so-called business risk.
e) short-time working
In principle, the employer is always affected by the so-called operational risk, i.e. the employer is obliged to pay the employees’ wages even if it is not possible for them to work. However, a loss of working hours due to the corona virus in the company currently regularly enables the use of short-time work compensation as a so-called unavoidable event within the meaning of Section 96 (1) no. 1 SGB III.
The basic prerequisite is that the employer has to be entitled to order short-time work at all, either on the basis of a corresponding provision in the employment contract, a collective bargaining agreement or a works agreement (the latter disputed). If the employer’s right to order short-time work does not yet exist, it can and should be agreed with the employees at short notice.
Where / when such agreement exists, the employer orders short-time work and reports this to the employment agency responsible for employer’s place of business. The agency then decides in a notice of recognition whether the prerequisites are met. At present (at least until 31.12.2020), short-time work compensation is possible if only 10% of the employees are affected by a loss of earnings of more than 10% of their monthly gross salary. A further condition is that short-time work is unavoidable. For example, employees must have been granted previously existing unplanned leave and overtime must have been reduced. It is not necessary to build up negative working time balances.
If the Federal Employment Agency approves short-time work on the merits following notification by the employer, the employer calculates the short-time allowance, pays it to the employees and then submits a benefit application for reimbursement to the Federal Employment Agency (online portal eServices of the Federal Employment Agency) separately for each month. Short-time work can be implemented for the entire company or only for individual parts of the company. Short-time work can be implemented for only a part of the working time, but it can also extend to a complete absence from work (short-time work „0“).The employee receives 60% or 67% (where such employee has to pay alimony to at least one child) of the lost net remuneration, based on the part of the working time that is actually lost. Following the recent change in the law, the Federal Employment Agency will pay the social security contributions attributable to the short-time working period.
Unless required by collective bargaining agreements, it is in the employer’s discretion, but not a prerequisite for short-time work compensation, to top up the loss of remuneration suffered by the employee.
4. EMPLOYEE‘S RIGHT OF RETENTION AND CONTINUATION OF REMUNERATION PAYMENTS IN THE EVENT OF SCHOOLS’ OR DAY-CARE’S CLOSURE?
a) A mere concern about catching an infection does not entitle a worker who is fit for work to be absent from work. For example, work may not be refused simply because a colleague re-turns from a region at risk. In this case, however, on the basis of employer’s duty of care the employer has to take the necessary measures to protect the workforce. The returnee could be instructed to provide a medical certificate to prove that he or she is not ill. This measure could be accompanied by a temporary leave of absence or an employer’s instruction to work in the home office. A company medical examination could also be considered if the returnee comes from an area which is subject to a travel warning. Employees with whom a home office solution has also been agreed and set up should be entitled to use this workplace as an alternative solution. Without such a binding agreement, however, there is in principle no right to work from home.
b) Only in case rendering work is objectively unreasonable an employee may refuse performance of his or her contractual obligations. However, in the professions where such a danger is immanent in the regular scope of work (such as medical and nursing activities), employees are obliged to perform their work throughout.
Business Trips: In view of the current severe restrictions on travel worldwide, this is a marginal issue, but will become important again when the restrictions are relaxed. Travel to pandemic areas would be unreasonable if the Federal Foreign Office issued a travel warning in this regard. In such instance, an employee may refuse to travel, in which case the employee remains entitled to his or her remuneration. As opposed to a travel ban, a mere security warning by the Federal Foreign Office would not be sufficient for such rightly refusal. If the employee justifiably refuses to work, the employer has the right to assign the employee to another job. If the employee is already abroad, the duty to work also exists there in principle, provided that the specific assignment has not become unreasonable.
c) Closure of children’s day-care or school due to the pandemic will not entitle an employee
looking after children to refuse to take up work. However, if the employee is unable to organise the necessary care (by relatives, commercial providers, etc.), he/she will be able to refuse to perform work in accordance with Sec. 275 (3) German Civil Code (BGB). It is generally assumed that pursuant to Sec. 616 BGB, the employee will be entitled to a remuneration for a period of up to 5 days. After this period, however, there is no longer any entitlement to continued payment according to the current legal situation. The measures introduced by the Federal government provide for compensation in the amount of 67% of the net remuneration for a maximum of 6 weeks provided there are children up to 12 years of age who have to be looked after and whose care cannot be organised otherwise in the light of closure of day-care facilities or schools.
5. MUTUAL DUTIES OF PROTECTION AND CONSIDERATION
a) Due to his or her duty of consideration under the employment contract, but also on the basis of a legal obligation pursuant to Secs. 15, 16 of the German Occupational Safety and Health Act (ArbSchG), an employee has to report a known infectious illness to the employer in the exceptional case of a pandemic, thus enabling the employer to take protective measures against spreading of the disease to other persons, in view of protection both of other persons and employer’s operational activities. The employer may ask the employee returning from a holiday abroad whether he/she comes from a risk area.
With respect to data protection laws, the employer may use information received from the employee – which may contain particularly sensitive personal data on health pursuant to Art.9
General Data Protection Regulation (“GDPR”) – for the protection of other employees and other persons and consequently invokes a legitimate interest within the meaning of Art.6 (1) b), d), f) GDPR.
b) The employer has a duty of protection and care under the employment contract as well as a statutory duty under Section 618 (1) BGB to inform the workforce about the illness, its risks and the protective measures taken for the company. The standard is § 4 ArbSchG: According to this law, the employer has to structure the work with suitable, necessary and reasonable protective measures in such a way that a danger to life and health is avoided as far as possible and the remaining danger is kept as low as possible. If the employer violates this obligation, employees are able to assert a right of retention regarding rendering their services as based on a lack of sufficient information and protection without losing the employee’s right to remuneration.
If there is a works council, it is advisable to conclude a works agreement in which binding, and in case of doubt only temporary, rules are laid down on health protection, the procedure for transfers, the right to demand reduction of overtime, guidelines governing business trips and legal representation. Some of the measures deemed appropriate by the employer will in any case be subject to mandatory co-determination (e.g. access controls and inspections).
6. ADDITIONAL UNILATERAL INSTRUCTION RIGHTS OF THE EMPLOYER: OVERTIME AND HEALTH PROTECTION
a) In an emergency, the employer has the right to demand overtime and temporarily assign the employee to work in other fields than those for which he/she is responsible, even if this would no longer be covered by the employer’s ordinary instruction right. However, the employee in general does not have to accept a health hazard.
b) In the event of a pandemic, the employer will also be able to invoke an extended right to is-sue instructions in accordance with Sec. 4 no. 7, Sec. 15 (1) ArbSchG in connection with the employer’s duty to protection pursuant to the employment contract where the employer initiates measures which serve to protect employees’ health.
30 March 2020 by Helge Röstermundt