Legal consequences for employees who are returning from risk areas

Due to the Corona Pandemic, travelling during the most popular vacation season is currently only possible to a limited extent and no previous vacation season has raised so many legal questions. Every day we hear about rising infection rates, new travel and safety warnings for regions even within the EU, the Foreign Office’s global travel warning  and new countries that are designated risk areas. Employers are currently facing the question of how to deal with employees returning from a vacation and whether the obligation to continue paying remuneration still applies.

According to the state law of the individual federal states, persons entering Germany from a risk area must immediately self-quarantine for a period of 14 days. The designation of international risk areas is published and continuously updated on the website of the Robert Koch Institute. Since the introduction of obligatory testing on August 8, 2020, persons returning from a vacation in risk areas must be tested for SARS-CoV-2 and be placed in domestic quarantine until they receive a negative test result. Alternatively, persons returning from a vacation in risk areas can present a negative test result upon entering Germany. Such a test result must not be older than 48 hours and must have been obtained in a country that has been approved by the Robert Koch Institute (you can find a list of approved countries on their website). In addition, persons returning from non-risk areas are also entitled to be tested. The costs for this are covered by public health insurance companies if the test is carried out within 72 hours of entry.

In principle, employees are not obliged to inform their employers of where they spend their paid leave. However, due to the special situation caused by the Corona Pandemic and the associated high risk of infection while travelling, such an obligation to inform the employer arises from the contractual duty of loyalty, § 242 BGB (German Civil Code). Thus, the employer also has the right to ask the returning employee whether they have been vacationing in a risk area during their paid leave. After all, the employer has a special interest in ensuring that the employees comply with the quarantine regulations and do not return to work immediately without being tested if they have been vacationing in a risk area.

Whether the employer is obliged to continue paying an employee’s salary during a quarantine depends on various factors.

In general, the employee can demand payment of their salary if, on the basis of a corresponding agreement with the employer, it is actually possible for them to work from home while being quarantined.

However, an employee who travels to a country that was already designated as a risk area by the Robert Koch Institute when they started their vacation is not entitled to continued remuneration. § 616 (1) BGB (German Civil Code), if it is not excluded anyway due to collective bargaining agreements or a respective clause in the employment contract, cannot be applied in this case either, since the quarantine and thus the foreseeable inability to work was caused by the employee alone.

The question of the obligation to continued remuneration during quarantine becomes more complicated in cases where the employee returns from a region which was classified as a risk area while they were staying there. A culpability in the sense of § 616(1) BGB (German Civil Code) and thus no claim for continued salary payments can only be justified in individual cases if an employee, despite being fully aware of general travel warnings and increasing infection rates, sticks to their travel plans, and then the classification as a risk area happens during their stay there.

If an (official) quarantine is ordered against the employee by the health authorities, the employee is entitled to compensation in the amount of his loss of earnings for the duration of the quarantine in accordance with § 56 IfSG (German Infection Protection Act). It should be noted here that the employer must make advance payments and that the compensation payment will only be reimbursed by the authorities to the employer upon application for reimbursement. It is unclear whether the compensation payment is also granted by the authorities if the employee deliberately goes to a risk area and deliberately accepts the risk of having to quarantine at home. Employers are therefore strongly advised not to pay compensation in the amount of the loss of earnings until it has been clarified with the authorities whether a compensation claim exists.

In order to avoid problems during the summer vacation period, employers are recommended to inform their employees about travelling to risk areas and to make it clear that no compensation will be paid for any loss of work due to quarantine upon return from a risk area.