Employees Returning from Vacation
The summer vacation season attracts many travelers to popular destinations abroad, which may have been declared high-risk areas due to rising infection rates and the spread of the delta variant. We explain under which conditions employers are obliged to pay compensation in the event of an officially ordered quarantine or a Corona infection.
Anyone who is incapable to work due to a corona infection is generally entitled to continued payment of remuneration pursuant to Sec. 3 German Continued Pay of Remuneration Act (EFZG). If the illness is asymptomatic and there is therefore no loss of working hours (e.g. because the work can be carried out in the home office), there is no continued payment of remuneration, but instead emloyers need to pay the regular salary.
Any employee who does not suffer from any symptoms, but is merely subject to an officially ordered quarantine, can in principle carry out their work from the home office during the quarantine, insofar as this is possible. If the work cannot be performed from the home office, employers can file a claim for compensation for loss of earnings under Sec. 616 German Civil Code (BGB). If Sec. 616 German Civil Code (BGB) has been contractually excluded, there is still a claim from Sec. 56 Para.1 German Infection Protection Act (IfSG). However, claims for compensation for loss of earnings are excluded if the quarantine was self-inflicted. In view of the ubiquitous reporting on the international pandemic and the concrete travel warnings issued by the German Foreign Office (German version) based on the risk classification of the Robert Koch Institute, a trip to an area for which a corona-related travel warning has been issued is particularly reckless and a considerable violation of the self-interest of a reasonable person. A possible corona infection due to a stay in a high-risk or even virus-variant area is therefore foreseeable and self-inflicted. Thus, there is no entitlement to continued payment of remuneration for the quarantine period due to a trip to a virus variant or high-risk area if the classification was already known at the time of departure. Pursuant to Sec. 56 Para. 1 Sent. 4 German Infection Protection Act (IfSG), there is also no entitlement to compensation for loss of remuneration if the quarantine order is the consequence of an avoidable journey to a region that was classified as a risk area at the time of departure. This is because in the case of an avoidable journey to a risk area for which a travel warning has been issued by the Federal Foreign Office, the traveller consciously accepts the risk of having to go into “quarantine” on his/her return.
Due to the rapid developments in the incidence of infection and the general warning issued by the Federal Foreign Office against unnecessary travel, it should be noted that countries can be classified as high-risk or variant areas within a short period of time. In this respect, a trip to a country that was only classified as such an area after departure could also be deemed to have been undertaken at the employee’s own risk. However, the circumstances of the individual case must be taken into account.
Paid Leave Days spent in quarantine will not be granted retroactively
If employees have to go into quarantine during their paid leave, the employer does not have to return the leave days that fall within the quarantine period to the employees. This even applies if employees fall ill with Corona and therefore have to go into quarantine. Paid leave days can only be returned for those days for which the employee can prove (by means of a medical certificate) that they were incapable to work. However, falling sick with the coronavirus does not necessarily lead to inability to work. Consequently, an official quarantine order does not replace a medical certificate of inability to work.
Paid time off for vaccination
The vaccination campaign against the coronavirus continues to make progress. Many employees are still encouraged by their employers and politicians to get vaccinated. However, there is still no legal entitlement to time off work to be vaccinated. As a general rule, employees must arrange personal appointments outside of working hours. Sec. 616 German Civil Code (BGB) does not provide for an entitlement to paid time off for the corona vaccination. Especially at the beginning of the vaccination campaign, those who could and wanted to be vaccinated had no influence on the allocation of the vaccination appointment as this appointment was automatically assigned to them. Absence from work for the purpose of attending a vaccination appointment was, at that time, considered to be not the fault of the employee. However, the obligation to continue to pay remuneration in Sec. 616 German Civil Code (BGB) requires that the reason for the inability to work lies in the person of the employee. This is not the case with the lack of availability of vaccination appointments. At this point, there is no longer a lack of vaccination appointments and employees can choose their appointment freely, even outside working hours.
On Wednesday, September 1, 2021, the Federal Cabinet approved the amendment to the SARS-CoV-2 Occupational Health and Safety Ordinance, which will come into force on September 10, 2021. Starting from that day, employees will have to be given the opportunity to be vaccinated against the SARS-CoV-2 coronavirus during working hours with continued payment. The announcement of this change has already drawn criticism from employers’ associations. There are considerable doubts as to whether the obligation to continue to pay remuneration can be effectively introduced by statutory order. In addition to the obligation to give employees paid time off for the vaccination, employers will in future also have to provide information about the health risks associated with corona infection and the opportunities for vaccination. The existing rules of the Corona Occupational Health and Safety Ordinance continue to apply – company hygiene plans must be established, employers remain obligated to offer testing to their employees in companies at least twice a week, and hygiene rules continue to be observed.
Compliance with the 3G rule
Currently, the 3G rule (German version) applies nationwide. According to this rule, only those who have been tested, vaccinated, or who have recovered can access public indoor areas. For employers in particular, the question arises as to whether the 3G rule also applies to employees and how it can be applied in the company.
Information about the vaccination, recovery and test status of employees is health data according to Article 9 Para. 1 Data Protection Regulation (DSGVO), which is particularly protected. According to Sec. 26 Para. 3 Sent. 1 German Federal Data Protection Act (BDSG), the processing of this data is only permitted if it is necessary for the exercise of rights or the fulfilment of obligations arising from the employment relationship. Which data collections are necessary depends on a balancing of the interests of the employer and the employees. The employer’s duty of care for the protection of all employees and towards third parties speaks for a right of data processing in this case. However, the fact that the question about the 3G status of employees is essentially a demand for sensitive health data which interferes with the general personal rights of the employees, and that fact could speak against employers being allowed to collect this data.
In the absence of statutory regulation on how to deal with compliance with the 3G rule in the workplace, the necessary balancing of interests remains with the employer. The legislator has decided in principle to prescribe a different protection concept at the workplace. The SARS-CoV occupational health and safety regulation obliges the employer to implement company hygiene concepts, which include distance regulations, mask obligation and other protective measures. The 3G rule is not covered by this. A blanket application of the 3G rule at the workplace is therefore not permissible. The amendment to the Corona Occupational Health and Safety Ordinance is not to change anything in this regard. Thus, it is currently not possible to allow employees to enter the company only in compliance with the 3G rule.
New as of September 10, 2021, when the amendment regulation comes into force, is that employers can take into account the vaccination or recovery status of employees already known to them when determining the necessary protective measures. This voluntary information can at least be used to adapt hygiene concepts a little to company requirements. The ordinance does not provide for an obligation for employees to disclose information, so that it is still necessary to balance the individual interests involved. Once the interests have been balanced, however, constellations are conceivable in individual cases in which compliance with the 3G rule is necessary: for example, in the case of customer contact, international business trips or if participation in events is part of the employee’s area of activity. If these employees refuse to provide proof of their vaccination status or to disclose their current test results, they cannot fulfill their obligations arising from the employment relationship. The employer could then consider consequences under labor law in order to implement its duties of protection and care towards employees and third parties.
Mandatory vaccination in companies
Not only compliance with the 3G rule, but also the introduction of mandatory vaccination for certain employment groups is of great importance to many employers. Currently, there is no legal obligation to get vaccinated and thus employers have no legal basis for the introduction of such an obligation.
According to current media reports, Lufthansa is working with employee representatives on corresponding company agreements that make a Corona vaccination a prerequisite for deployment on board. Due to the country-specific entry requirements, airlines in particular are dependent on their flying personnel being vaccinated and being able to be deployed accordingly on air travel. Lufthansa is taking the route of a company agreement. Such an agreement already exists for the yellow fever vaccination, which is also obligatory for these employees. In other sectors, too, employers can only deploy their employees in accordance with their activities if they have been vaccinated. For example, field staff in pharmaceutical companies with contact to hospitals and doctors are required to be fully vaccinated, as are nursing staff in retirement homes. Against this background, Sec. 23a German Infection Protection Act (IfSG) gives employers in special areas of health care and nursing the possibility to collect and process the vaccination status of employees for the purposes of establishing and implementing the employment relationship. In the absence of legislation for all other economic sectors, employers are left to their own devices for the time being to find ways and means to deploy their employees in accordance with their activities and to meet the respective corona-related requirements (entry requirements, compliance with the 3G rule during customer contact, etc.).
Photo: © 2021 Shutterstock / Anna K Mueller