COVID-19 and Employment contracts in Germany

So far Germany saw only a modest lock-down. Most People could go to work all the time. Working from home was recommended wherever possible but not mandatory. However, a lot of companies had assigned their employees to work from home. But as of June more and more companies have been going back to (normal) office work. Production plants, that had been closed down (also due to lack of supplies), have resumed their work already in the course of May.

Some businesses like restaurants/ hotels, free time and sport facilities as well as cultural institutions were closed down completely. As restaurants/ hotels were opened at the end of May and free time facilities as well as cultural institutions at the beginning of June, employees in this sector have resumed their work, too.

Recently one branch has been suspected to be a corona hot spot – the meat industry, namely slaughterhouses. Some plants have been shut down due to high infection numbers. This has caused a general discussion about the working conditions of employees (often from Eastern Europe) in the meat industry.

The Federal Ministry of Labour and Social Affairs has issued guidelines on occupational safety and health standards (e.g. wearing a face mask, social distancing) during the Corona pandemic, available also in English:

https://www.bmas.de/SharedDocs/Downloads/DE/PDF-Schwerpunkte/sars-cov-2-arbeitsschutzstandard-en.pdf?__blob=publicationFile&v=2

Although not directly binding like a regulation, companies should consider these guidelines while drafting their concept of occupational health and safety measures. However, In the case of deviating measures, companies must prove in case of doubt that these alternatives were just as suitable as the recommendations mentioned above. Otherwise, there is a considerable risk of liability in the event of employee illness. Moreover, the works council (Betriebsrat) needs to be regularly involved in the development process, too.

In addition, the Ministry has set up a new committee (Corona-Arbeitsschutzstab). This body shall support the Ministry in the implementation and further development of these occupational health and safety standards. In this respect, the whole process will remain dynamic over the upcoming months.

Moreover, numerous statutory employee accident insurances have already made supplementary sector-specific specifications.  These exist, for example, for teaching or such diverse activities as the production of ice cream, helicopters or coins. If the employer does not take them into account in his safety concept, he exposes himself to a comparable risk.

Finally, there are different regulations at regional level, which take into account local specifics, e.g. local “Corona-hotspots”. Some of these also contain occupational health and safety guidelines for companies. In contrast to the above mentioned guidelines of the Ministry, no deviation is regularly permitted here. A violation is usually subject to a fine, and in some cases also to criminal punishment.

Conclusion

In summary, it is therefore always advisable to familiarize yourself in particular with any regional and industry-specific features in addition to the aforementioned recommendations of the Ministry.

Can I ask my personnel to take out a health questionnaire before returning to the office?

Also during the pandemic, the collection of health data – as provided for in the GDPR – is subject to increased requirements.

In principle, however, according to the Federal Commissioner for Data Protection, the collection and processing of personal data (including health data) of employees by the employer is permitted in order to prevent or contain the spread of the virus among employees as far as reasonable and proportionate.

According to the Federal Commissioner for Data Protection, this includes in particular information on cases,

• in which an employee has been diagnosed with an infection or has had contact with a person who is proven to be infected,

or

• where an employee has been present in an area officially classified as a risk area during the relevant period.

However, the disclosure of the identity of infected / suspected persons within the workplace is only lawful if the knowledge of the identity of these persons is -as an exception- necessary for the precautionary measures for potential contacts of these persons within the workplace.

Conclusion

In view of this, the admissibility of the questionnaire depends here too on the specific situation and may also be subject to a certain dynamic. This applies in particular to regions/companies where an above-average level of infection has been detected.

The question of whether and to what extent fever measurement is permissible is a controversial issue. There is no clear line among the regional DPAs. At the beginning of the pandemic such a procedure has often to be deemed inadmissible in general, due to lack of suitability. However, this approach slightly changed among some authorities. Some sources also differ between visitors and employees. The last-mentioned may then only be examined by qualified medical personnel.

Conclusion

In view of the ambiguities that exist in this respect, it is advisable to examine the practice of the regional DPA.

In general, employees are obliged to go to work also during a pandemic crisis as long as they are not the addressee of an administrative deed. If they refuse to go to work, they risk disciplinary actions and the employer does not have to pay the salary. The general principle of “no work, no payment” applies. These principles have recently been confirmed: In a current case a teacher claimed to have the right to stay away from school due to the risk of infection. However, the court decided that the school/administration had implemented sufficient safety measures and therefore the teacher was obliged to provide her services in school.

However, employees may have in individual cases the right to stay away from work, which means they do not risk disciplinary actions. But such a right to stay home does not automatically go together with continued payment. The following cases can be distinguished:

1. there is a high risk of infection based on objective grounds and the employer refuses to take any safety measure to avoid infection (though it would be manageable to do so): In this case the employer breaches his duty of care. Due to this breach the employee has the right to retain his/her performance. The employee has the right to stay away from work, but the employer has to pay the salary.
2. the employee cannot reasonably be required to perform their work (§ 275 III German Civil Code). A condition of unreasonableness could be met if the employee or a person living in his household is part of a risk group and though the employer implements safety measures a high risk of infection remains. In such cases the employee is allowed to stay away from work. Whether, the employer will be obliged to pay the salary or not depends on the specific circumstances, e.g. whether the hindrance is only temporary. But as in most of the cases being part of a risk group could not be deemed as only “temporary personal reasons” the employee may often not be entitled to continued payment.

Conclusion

The mere general fear of an infection does not justify to stay away from work. If an employer implements safety measures as explained in question 2, the risk to be obliged to pay the salary of employees staying at home due to risk of infection or the respective fear is minimized.

If the right to work from home has not been contractually agreed with the employee explicitly, the employee has no claim to this. Rather, the employer may continue to determine where the employee has to perform his work.  However, the employer must take this decision at his reasonable discretion. In exceptional cases, a claim of the employee then may arise due to a prior allowance. As a rule, however, this is not the case.

Furthermore, the legislator is currently discussing the introduction of a statutory entitlement to work from home. The current legal situation may therefore change in the course of the year.

Conclusion

Any remaining doubts can be excluded, if this aspect has already been addressed while regulating working from home.

Formation of a “Corona Task Force”, Task:

• Keeping an eye on the dynamic legal and pandemic developments, including taking the necessary measures within the workplace
• Taking care of communication and information of the employees

Starting step by step: If you have sent your complete staff to work from home, start with small teams or only some days per week not everybody at once

Coordination with the statutory employee accident insurance on industry-specific occupational health and safety regulations,

Precautionary development of a concept in case of a second lock-down

Subsequent review of former “emergency measures” – insofar as they may include compliance risks of criminal prosecution or fines -, in particular:

• data protection issues in connection with working from home (“zoom bombing”)
• any discrepancies between short-time work as applied for and as actually implemented later on

…and for a good ambience at work :

• Don’t ignore employees’ fears: Try to calm them without giving up your plans on re-opening
• Don’t ignore employees’ that are fed up with safety measures, masks and any Corona-related restrictions: Appeal to their sense of responsibility

Only very few changes have been made since June 2020. A new recovery package (“Konjunktur-Paket”) has been resolved. Besides other measures to strengthen the economy it includes a protective shield to sustain company-based apprenticeship also in times of crisis and reduction of business. The purpose is to avoid a shortage of skilled workers in the future.

It provides special financial subsidies for SMEs that continue company-based apprenticeship, provided that they do not send neither apprentices nor training personnel on short-time-work.

All companies that continue their company-based apprenticeship on the same level as in the 3 years prior to the Corona-crisis receive a one-time payment. Companies receive a one-time payment, if they employ apprentices that could not continue their apprenticeship due to the insolvency of their former employer.

Furthermore, different programs for loans, bank guarantees and one time grants have been set up to support businesses of all sizes.

Check out the numerous measures in English under https://www.bmwi.de/Redaktion/EN/Downloads/P/package-of-measures-to-combat-the-impact-of-coronavirus-on-companies.pdf?__blob=publicationFile&v=10

Short time work and thus salary reductions are a way of facing the decrease of activity or the complete closedown of business. However, employers cannot implement short-time work unilaterally. Either employees give their consent to short-time work or a collective agreement (collective bargaining agreement with the trade unions or a works agreement with the works council) exists, that allows the implementation of short-time work. If a works council exists, its involvement is mandatory.

If no such collective agreement exists and the employee refuses to give his/her consent to short-time work, a dismissal with the option of altered conditions of employment (i.e. with short-time work) based on operational reasons could be possible under specific circumstances. This is the only, but difficult way to implement short-time work without consent or agreement. However, it seems to be easier to appeal to the employees’ understanding and responsibility.

In case of short-time work, employers can apply for a short-time work allowance with the unemployment agency. The allowance has recently been adapted due to Corona-crisis. Normally, it compensates for 67% (with child) or 60% (without child) of the net pay lost as a result of the short-time work and can be paid for up to twelve months. By the end of 2020 the allowance increases to 77% (with child) and 70% (without child) as of the fourth month of short-time work and 87% (with child) and 80% (without child) as of the seventh month of short-time work.

The duration of the allowance can be extended up to 21 months for employees who have already worked short-time in 2019.

The prerequisites for a short-time work allowance are:

Significant work absences

• Based on economic reasons or an unavoidable event
• Temporary and unavoidable
• At least 10 % of the staff is affected by short-time work and each of them loses at least 10% of their income (the thresholds have been lowered for the Corona crisis)

Operational requirements

• at least one employee is employed
• it is possible to implement short-time work only in specific departments of the company

Personal requirements

• Employment is fully subject to social security

No allowance for

• so-called “Mini-Jobber” with a monthly gross salary of EUR 450 or lower
• employees on sick leave for longer than 6 weeks receiving sick payment from the health insurance
• employees whose employment is terminated

Further improvements of the short-time work allowance during Corona crisis are:

• social security contributions are reimbursed completely by the unemployment agency
• short-time work allowance can also be granted to temporary workers
• in case a company provides flexible working hours and provides a working time account, employees are not obliged to take “minus hours” on the account to avoid short-time work

Employers can apply online via https://www.arbeitsagentur.de/eservices-unternehmen.

Foreign companies can apply for short-time work allowance as long as the employees in Germany are subject to German social security and if the activity in Germany can be deemed as an “operation” within the meaning of the provision on short-time work.

Companies can fill the gap between the full time salary and the short-time work allowance voluntarily without any effect on the short-time allowance.

By the end of 2020, the rules on the deduction of short-time allowance due to an extra income have been liberated. It is now possible for employees receiving short-time allowance, to work in a second employment and achieve additional income without deductions of the short-time allowance, as long as the additional income plus short-time allowance do not exceed 100% of the normal full time income.

If a firm offer (either by sending a draft contract or by mentioning essential contract elements like missions, remuneration and date of start) was made and already accepted, then this means that there can already be a binding contract, whether a formal one has been signed or not.

In this case or if an agreement has actually been signed, a termination notice or a bilateral termination agreement is necessary to step back from the planned employment.

If not excluded explicitly in the employment contract even a termination before the start of employment is possible. In general the termination notice period, that needs to be observed, starts with the receipt of the termination notice and not with the planned start of employment.

As the strict Protection Against Unfair Dismissal Act does not apply to employments during the first 6 months, a termination is valid in case there is any plausible reason. A termination within the first 6 months of an employment is only invalid in case the termination is fraudulent or given in bad faith. However, if the reason for the termination is the Corona crisis, it can hardly be deemed as fraudulent.

Another option is to postpone the start of the employment amicably. Though there are no specific rules on such cases, unemployment agencies have signaled that employees concerned by such a postponement could benefit from unemployment allowances during this period, even if they had resigned from their previous job and would therefore usually not be eligible for those allowances.

Furthermore, short-time work can be implemented for new employees as well under the requirements mentioned in No. 1.

No, unfortunately not. The use of vacation can only be granted upon request of the employee or agreed upon amicably.

Although there is the instrument of a companywide vacation closedown which forces the employees to use vacation days during this vacation closedown, this instrument is not a suitable one during Corona crises. A companywide vacation closedown has to be announced with several months’ notice and the employer is bound to the announced vacation closedown. Thus, with this instrument the employer could not react flexible on imposed restrictions or their withdrawal.

What the employer can do is to assign the use of any overtime entitlements.

First of all, employees with children, whose child care institutions are closed down, have to take every possible step to organize alternative care for their children during working hours. However, in the current situation it is often impossible to find alternative caring options. If the children are too young to be left home alone, an employee is in general allowed to stay home in order to take care of the children. He/She is not obliged to use vacation entitlements.

However, the right to stay home does not automatically go together with continued payment. In such cases of temporary personal reasons to stay away from work, the employee is entitled to continued payment temporarily, i.e. for about one week. Therefore, a lot of parents would face loss of income when taking care of their children in times of a shutdown lasting several weeks.

Employers and employees are encouraged to find practical solutions e.g. shift working, working on weekends, working from home etc.

In order to minimize the loss of income for working parents the current legal situation has been adapted. According to a new provision in the Infection Protection Act, working parents are entitled to a compensation for the loss of income in case the child care institution is closed due to infection protection and they have to take care of their children aged under 12. The compensation is 67% of the income, but 2.016 EUR max. and is paid for up to 10 weeks per parent or up to 20 weeks for single parent. The compensation will be paid by the employer, who can apply for reimbursement with the competent authority.

The Federal Ministry of Labour and Social Affairs has issued a paper on occupational safety and health standards during Corona crisis. An English version of the paper can be found here: https://www.bmas.de/SharedDocs/Downloads/DE/PDF-Schwerpunkte/sars-cov-2-arbeitsschutzstandard-en.pdf?__blob=publicationFile&v=2

For example, employers are obliged to provide a safe work environment (e.g. keeping safe distance and where not possible providing alternative protective measures; sufficient cleaning and hygiene facilities). Office work should be performed at home if possible. Business trips and face-to-face interactions should be reduced to the absolute minimum. Finally, the employer should always take into consideration that the Corona-crisis does also mean psychological stress for the employees.

Yes, in general, a termination of contract is possible. Unlike in other countries there is no rule prohibiting dismissals during Corona-crisis.

However, the strict requirements of the Protection Against Unfair Dismissal Act for a valid termination have to be fulfilled. A termination based on operational reasons has to be planned carefully. Alleging “economic difficulties” alone will not justify a termination.

Furthermore, participation rights of the works council (if existing) have to be observed.

In particular, if mass dismissals are necessary, the employer can be obliged to conclude a reconciliation of interests and a social compensation plan with the works council.