Ogletree Deakins - COVID-19 Kurzarbeit

We are currently in the 9th month of the Corona pandemic—a time during which vast amounts of different regulations were passed at state and federal level and in some cases were overturned again by the courts. With this update we would like to provide you with an overview of current regulations particularly relevant for employers.

Nationwide measures to contain the spread of the coronavirus

Due to the drastic increase in the number of infections in recent weeks, on October 28, 2020, the German Chancellor, in consultation with the heads of the federal states, adopted new regulations to contain the spread of the coronavirus. The new regulations came into force on November 2, 2020 through state ordinances of the individual German states and will remain in force at least until the end of November.

According to these new regulations, all employers are required to allow their employees to work in the home office if at all possible. If operational requirements do not allow for home office work, employees can continue to work from the office or on company premises if an appropriate hygiene concept is available.

In addition, only people from a maximum of two households are now allowed to meet. The number of persons was limited to a maximum of 10. The contact restrictions apply to private events and meetings. However, the regulations leave open whether and which contact restrictions should apply to official meetings. In addition to private meetings, the regulations also set maximum limits for the number of participants at events. These regulations vary greatly from state to state in terms of the number of people allowed and are generally also valid for meetings in a professional or business context. Exceptions to the maximum number of participants are rare, but some exceptions are granted for meetings of judiciary organs. Whether these regulations can be applied to official meetings of any kind is currently not clearly regulated. In general, the maximum number of participants allowed in meetings according to the applicable corona regulation should be observed and the corona protection measures should be abided by.

The new measures to contain the pandemic may, among other things, impact business travel within Germany. Since November 2, 2020, overnight accommodation in hotels or similar facilities are no longer permitted for tourist purposes. Only in cases of necessary business trips is it still possible to stay overnight in hotels. In some federal states, business travelers are required to present an employer’s certificate proving the necessity of the business trip at check-in. As a matter of principle, it is requested to refrain from unnecessary travel even within Germany.

Medical sick leave certificates via telephone

Since October 19, 2020, medical sick leave certificates to be presented to the employer can be requested from the doctors by phone. The special regulation applies to patients with mild respiratory diseases and will continue until the end of the year. Those certificates can be issued for up to 7 days with the possibility to extend the sick leave by another 7 days via phone.

Mandatory business trips to Germany and the EU

On June 30, 2020, the EU Council adopted a “Council Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction”. According to this recommendation, unrestricted entry is possible for citizens of the EU, the United Kingdom and the EFTA states (Iceland, Liechtenstein, Norway, Switzerland) and their closest family. This also applies to nationals of third countries with an existing long-term residence permit.

Since July 17, 2020, unrestricted entry has also been possible for residents of countries on the “EU Positive List”. Germany has implemented this positive list, which currently includes Australia, New Zealand, Singapore, Thailand and Uruguay. Persons are deemed residents of the respective country if they have lived there for at least 6 months.

For all the other travelers, entry is only possible if it is absolutely necessary. The required documents must be presented upon entry into Germany. The Federal Police decide on entry on their own reasonable discretion. It is possible to submit the documents to the responsible federal police for preliminary examination before entry. In order to be absolutely sure that entry will be possible, we highly recommend travelers make use of this possibility. If travelers display symptoms of a corona infection, entry can be refused even if all other entry requirements are met. In addition to the entry requirements, current passport and visa regulations must be observed.

Since July 2, 2020, foreign skilled workers and highly qualified employees have been allowed to enter Germany if the employment is necessary from an economic point of view. Necessity must exist for economic relations and/or the economy of Germany or the European single market. In addition, there must be no possibility of carrying out the work remotely from abroad or at a later date.

In the case of a long-term stay for the purpose of working in Germany, proof of the obligation to be present in Germany as well as a credible demonstration of the necessity of working in Germany must be provided. For proving the obligation to be present, the employment contract can be presented among other things. With regard to the necessity, proof must be provided that the work cannot be performed at a later date or remotely from abroad.

In the case of a business trip in the sense of § 16 BeschV (German Employment Regulation), entry is possible if the stay does not exceed 90 days within a period of 180 days. During that time, the business travelers may conduct meetings or negotiations in Germany, prepare offers of contracts, conclude contracts or monitor their execution, or establish, monitor or control a part of a foreign employer’s business in Germany. Entry is only possible if it is credibly demonstrated that the business trip is absolutely necessary from an economic point of view, also in view of the pandemic situation. For this purpose, both a certificate from the employer and a confirmation from the business partner in Germany are required. In particular, the declaration on the absolute necessity of a short-term business trip, a declaration form prepared by the Federal Ministry of the Interior, can be used to provide credibility. Please note that the declaration of the employer in the third country alone is not sufficient and therefore the confirmation of the business partner in Germany is absolutely necessary.

Entry for participation in trade fairs is also possible if it can be demonstrated that this is absolutely necessary. To enter the country for participation in a trade fair, a participation confirmation from the organizer must be presented. Visitors to a trade fair are required to present an admission ticket and a confirmation of appointment from at least one exhibitor for a business meeting at the trade fair.

New quarantine regulations

Since November 8, 2020, the new quarantine regulations of the federal states have been in effect, which are based on the model regulations of the federal government. Now it applies that people who have been staying in risk areas during the last 10 days must be isolated for a period of 10 days. The quarantine can be shortened by presenting a negative test result, but a test must not be taken earlier than on the 5th day and at the latest on the 10th day after entry. Exceptions from the quarantine regulation are only valid for certain groups of people if a negative result of a test, which was not taken earlier than 48 hours before entry or was taken immediately after entry is presented. People for whom these exceptions are valid include persons who work in jobs or fields that are officially considered to be relevant for the system. Persons who need to stay in Germany for only up to 5 days for urgent professional or occupational reasons and who can demonstrate that the business travel cannot be delayed to a later date are also exempt from the new quarantine regulations. Further exceptions from the quarantine obligation without the necessity of a corona test exist, for example, for people who commute across the border every day for their job and people who work in the field of transporting goods and commodities.

Up to now, travelers were obliged to inform the responsible health authority immediately about their entry, which was usually done by means of the so-called exit cards. This information obligation can now be fulfilled by travelers by using the digital entry registration.



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