Employment
Employment law and COVID-19 – what you need to know
Coronavirus has fundamentally changed the way that businesses operate day to day. There continues to be uncertainty on the part of both employees and employers. Here are the most important facts in brief:
I. Employee representative bodies
What does the coronavirus crisis mean for work on employee representative bodies?
Is the period of entitlement to unemployment benefits extended during the coronavirus crisis?
What special health & safety requirements apply on account of the coronavirus crisis?
Do workers have to be released from work to attend a vaccination appointment?
What does the coronavirus crisis mean for parental allowance?
Can an employer order employees to work from home?
Do employees have the right to work from home?
VII. “3G” rule and “2G” rule on the company premises
VIII. Compulsory vaccination in employment
Can an employer ask about an employee's vaccination status?
Can employers offer a “vaccination bonus”?
Can the continued payment of salary/wages be denied if an employee is unvaccinated?
Can an employer order short-time work?
What are the conditions for applying for the short-time allowance (Kurzarbeitergeld)?
How much is the short-time allowance?
For how long is short-time allowance paid?
What are the options for earning additional income?
Can employers lay off staff on operational grounds despite their being in short-time work?
X. Duty to wear mask vs. medical certificate
Employer’s obligation to introduce duty to wear mask
Certificate exempting holder from duty to wear mask
XII. School and childcare facility closures
Can employees stay home if childcare facilities or school are closed?
How long do employees receive the child sickness payment to look after their children?
Who makes up for loss of earnings?
XIII. Exemption from tax and contributions for special payments and non-cash benefits
XIV. Deferring social security contributions
Can social security contributions be deferred?
I. Employee representative bodies
What does the coronavirus crisis mean for work on employee representative bodies?
It is possible to conduct works council meetings and adopt resolutions virtually, subject to the requirements set out in section 30 et seq. of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”). Since 17 September 2022, both conciliation boards (section 129(2) BetrVG) and works meetings (section 129(1) BetrVG) can again be conducted virtually, but only until 7 April 2023 at the latest. Similar arrangements for virtual meetings held by executive representative committees (section 39 Managerial Employees Committee Act (Sprecherausschußgesetz, “SprAuG”)), European works councils (section 41b European Works Council Act (Europäische Betriebsräte-Gesetz, “ERBG”)), and the works councils of both European companies (section 48 Act on the Participation of Employees in European Companies (SE-Beteiligungsgesetz, “SEBG”)) and European cooperative societies (section 50 Act on the Participation of Employees in European Cooperative Societies (SCE-Beteiligungsgesetz, “SCEBG”)) also apply until 7 April 2023 at the latest.
Is the period of entitlement to unemployment benefits extended during the coronavirus crisis?
There is currently no extension to unemployment benefit entitlements in connection with the coronavirus crisis.
What special health & safety requirements apply on account of the coronavirus crisis?
The SARS-CoV-2 Ordinance on Occupational Health and Safety (SARS-CoV-2-Arbeitsschutzverordnung, “Corona-ArbSchV”) expired as of 2 February 2023 and has been replaced by the Federal Ministry of Labour and Social Affairs (BMAS)’s recommendations for occupational infection control. The recommendations include:
- social distancing of at least 1.5 metres between people,
- maintaining tried-and-tested hand hygiene, rules (coughing and sneezing into the crook of your arm, regular and thorough handwashing, and staying home when symptoms of illness occur),
- wearing a surgical mask if you cannot social distance, or if you have cold symptoms,
- regular ventilation of indoor areas,
- reducing contacts at work when infection rates are high.
The full list of BMAS's current recommendations for occupational infection control is available here.
It is no longer permitted to deviate from the provisions of the Working Hours Act (Arbeitszeitgesetz, “ArbZG”). The COVID-19 Working Hours Regulation (COVID-19-Arbeitszeitverordung) permitted exemptions from the Working Hours Act for the period 10 April 2020 to 31 July 2020, but these no longer apply.
Do workers have to be released from work to attend a vaccination appointment?
Since the expiry of the Corona-ArbSchV, there has no longer been a legal entitlement to be released from work for the purpose of getting vaccinated. Even if an employer voluntarily releases its employees from work to get vaccinated, it is unlikely that employees will be entitled to remuneration for this period under section 616 Civil Code (Bürgerliches Gesetzbuch, “BGB”). Coronavirus vaccines are now easily available, and vaccination appointments can usually be obtained outside of working hours. For this reason, a vaccination appointment no longer constitutes an obstacle to performing work within the meaning of section 616 BGB.
What does the coronavirus crisis mean for parental allowance?
Upon application, months between 1 March 2020 and 23 September 2022 with lower income owing to the coronavirus will not be included when calculating parental allowance, section 2b (1), sentence 4 Act on Parental Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz, “BEEG”). This rule will benefit parents who have suffered loss of income owing to the coronavirus pandemic because they were in short-time work, for example.
Can an employer order employees to work from home?
The following distinction must be made here:
- Some courts have taken the view that employers cannot unilaterally order employees to work from home. In our opinion, however, this does not apply in scenarios where, as in a pandemic, working out of the company premises is not an option. However, the employer would then be responsible for ensuring compliance with health and safety at work rules at the employee’s home office.
- Asking employees to work remotely could be a more appropriate solution in the current situation. For this, an employer provides its employees with the necessary equipment (usually a laptop with the necessary software installed on it) and instructs them to work remotely on a temporary basis. This could also involve employees using their own devices (bring your own device).
Under section 87(1), no. 14 BetrVG, the works council has the right to codetermine how remote work and working from home is structured, but not whether or not it is to be implemented.
Do employees have the right to work from home?
There is no statutory obligation to offer employees the option of working from home.
VII. “3G” rule and “2G” rule on the company premises
The obligation to wear a mask and undergo regular testing that applied to employees of hospitals and similar medical care facilities and of nursing homes and care services under section 28b(1), nos. 3 and 4 IfSG has been repealed with effect from 1 March 2023.
There is no longer a general “3G” rule for other workplaces either.
Any voluntary retention of the “3G” rule in companies is likely to face the legal obstacle that obtaining an employee’s vaccination status without a statutory authorisation to do so is deemed impermissible under data protection law (see IX. on this point).
VIII. Compulsory vaccination in employment
Compulsory vaccination is not possible on the strength of a legal ordinance (section 20(6), (7) IfSG). It is largely held that employees’ basic rights preclude any instruction to them to get vaccinated, based either on the employer’s right to give instructions to them or on an employment, collective bargaining or works agreement. These basic rights include the right to physical integrity (Article 2(2), sentence 2 Basic Law (Grundgesetz, “GG”)) and general personal rights (Article 2(1), sentence 1 in conjunction with Article 2(1) GG).
Can an employer ask about an employee's vaccination status?
Under section 23a, sentence 1 IfSG, an employer may only obtain an employee’s vaccination status if the employee works in the healthcare sectors specified in section 23(3) of the Act, i.e. hospitals, doctors’ practices or day care facilities. Section 35(2) IfSG contains a similar provision for the areas specified in section 35(1) IfSG, e.g. for employees of partial or full inpatient nursing care facilities and of nursing care services.
For all other employment relationships, there is no special statutory basis on which to obtain an employee’s vaccination status. It is also unclear whether obtaining an employee’s vaccination status is permissible under data protection law. For as long vaccination is not generally compulsory, vaccination status information is not considered necessary for the performance of an employment relationship within the meaning of section 26(1) Federal Data Protection Act (Bundesdatenschutzgesetz, “BSDG”). Vaccination status also has special protection under Article 9(1) General Data Protection Regulation (GDPR), and there are no (statutory) rights or obligations within the meaning of Article 9(2) GDPR or section 26(3) BDSG that authorise or oblige employers to process their employees’ vaccination status. However, the Federal Labour Court (judgment of 1 June 2022 - 5 AZR 28/22) has ruled – at least for the processing of health data in connection with workplace testing obligations – that rights and obligations within the meaning of section 26(3), sentence 1 BDSG can also arise from the employment contract itself without the need for a codified provision. This indicates that any measure that is permissible under the right to give instructions (such as requiring workplace testing) is also permissible under data protection law.
Employees may also have a codetermination right under section 94(1) BetrVG.
Can employers offer a “vaccination bonus”?
Employee willingness to be vaccinated may be increased by offering a vaccination bonus for vaccinated employees. But this may breach the prohibition of victimisation set forth in section 612a BGB. In this case, non-vaccinated employees would also be entitled to the bonus. Under section 87(1), nos. 10, 11 BetrVG, the works council has the right to codetermine the introduction of specific incentives.
Can the continued payment of salary/wages be denied if an employee is unvaccinated?
Pursuant to section 3(1) Continuation of Remuneration Act (Entgeltfortzahlungsgesetz, “EFZG”), the continued payment of salary/wages can be denied where an employee has “culpably brought this upon him or herself”. It has not been clarified whether refusing a Corona vaccination that was available would constitute such culpability. Although the vaccination is not obligatory under statutory law – which would argue against such culpability – section 56(1), sentence 4 IfSG provides that there is no claim to compensation for loss of earnings because quarantine has been ordered where the latter could have been avoided by making use of a recommended vaccination. This suggests that not making use of a recommended and available vaccination may constitute culpability brought upon oneself and therefore can rule out claims to continued payment of salary/wages.
Can an employer order short-time work?
An employer can order short-time work if it is entitled to do so on the basis of an employment agreement, a works agreement or a collective bargaining agreement. Under section 87(1), no. 3 BetrVG, the introduction of short-time work is also subject to co-determination by the works council.
What are the conditions for applying for the short-time allowance (Kurzarbeitergeld)?
For employees to receive short-time allowance, the employer must report short-time work to the Federal Employment Agency and apply for short-time allowance. Information about the simplified application procedure can be found here (German). Short-time allowance is granted if the requirements set out in section 95 to 99 Social Security Code, Book III (Sozialgesetzbuch, Drittes Buch, "SGB III") are met, i.e.
- there is a significant reduction in the volume of work to be done,
- the operational requirements are met,
- the personal requirements are met, and
- the Federal Employment Agency has been informed of the reduction in the volume of work.
Material reduction in the volume of work
The reduction in the volume of work must be due to economic reasons or an unpreventable event, it must be temporary and unavoidable and exceed a materiality threshold in the month in question.
According to the Federal Employment Agency’s current information leaflet “Short-time allowance and coronavirus: information for businesses”, employees can be paid short-time allowance if business falls away or contracts are cancelled due to the coronavirus or if materials cannot be obtained or work drops off due to protective measures ordered by the government.
The minimum requirements for the materiality of the reduction in the volume of work are set out in section 96(1), no. 4 SGB III. As a general rule, one-third of the employees must be affected by the reduction in work. Until 30 June 2022, a lower threshold applied under section 421c(4) SGB III (old version): A company was able to register for short-time work if at least 10% of its workforce were affected by the reduction in the volume of work. The amended Access to Short-Time Allowance Ordinance (Kurzarbeitergeldzugangsverordnung, “KugZuV”) – which took effect on 1 January 2023 – again extended this lower threshold, and it now expires on 30 June 2023.
The suspension of the requirement under section 96(4) SGB III that employees have negative working-time balances (“negative hours”) before the short-time allowance is paid – as proof that the reduction in the volume of work was unavoidable – will continue until 30 June 2023 (section 1(3) KugZuV).
Business requirements:
Any business that employs at least one person fulfils the conditions on the business level.
Personal requirements:
On the personal level, an employee fulfils the conditions for short-time allowance pursuant to section 98(1) SGB III if they are in an employment relationship, have not been given notice of termination and are subject to compulsory insurance. Persons in minor part-time employment (geringfügig Beschäftigte) therefore do not qualify for short-time allowance unless they are subject to compulsory insurance. Since 1 July 2022, income from minor part-time employment has been deducted from the short-time allowance payable.
Under the Short-Time Allowance Extension Ordinance (Kurzarbeitergeldverlängerungsverordnung, “KugverlV”) – which was repealed on 31 March 2022 – employers were able apply to receive flat-rate reimbursement from the Federal Employment Agency on the basis of the full amount of social security contributions incurred for lost working hours until 31 December 2021; for the period from 1 January 2022 to 31 March 2022, however, it only reimbursed 50% of social security contributions. Since 1 April 2022, the reimbursement of 50% of social security contributions has been possible under section 106a SGB III only if short-time work commences before 31 July 2023 and is linked to professional development.
How much is the short-time allowance?
The Federal Employment Agency currently pays employees on short-time work 60% of their last net salary – or 67% for employees who have children – like it did before the pandemic.
For how long is short-time allowance paid?
Like before the pandemic, short-time allowance is again generally paid by the Employment Agency for a maximum of twelve months (section 104(1), sentence 1 SGB III).
What are the options for earning additional income?
Pursuant to section 421c(1) SGB III (old version), income from minor part-time employment pursuant to section 8(1), no. 1 SGB IV taken up during short-time work will not be deducted from an employee’s short-time allowance for the period until 30 June 2022. This income now is added to the actual earnings figure, i.e. the gross remuneration that the employee actually earns in the entitlement period, under section 106(3) SGB III.
Can employers lay off staff on operational grounds despite their being in short-time work?
Short-time work and terminations on operational grounds are not mutually exclusive. While short-time work is intended to balance out a temporary reduction in the volume of work, terminations on operational grounds are a way of dealing with a long-term fall-off. The Federal Labour Court does however apply a particularly strong test when it comes to terminations on operational grounds after the introduction of short-time work: The employer must show that new circumstances have arisen that have led to a long-term reduction in the volume of work.
Where an employer decides to lay off employees who are on short-time work, the prerequisites for the payment of short-time allowance generally cease to apply once a reconciliation-of-interests plan and a social plan have been concluded or, if there is no works council, once terminations on operational grounds have been announced.
X. Duty to wear mask vs. medical certificate
Employer’s obligation to introduce duty to wear mask
The obligation to wear an FFP2 mask that applied to employees of nursing care facilities, hospitals and similar facilities under section 28b(1), nos. 3 and 4 IfSG has been repealed with effect from 1 March 2023.
Otherwise, the BMAS recommendations apply: You should wear a mask whenever it is not possible to social distance (at least 1.5 metres) or when you have cold symptoms. If an employer does instruct workers to wear masks, it cannot impose the resulting costs on workers under section 3(3) Occupational Safety Act (Arbeitsschutzgesetz, “ArbSchG") and must therefore bear the costs itself.
Certificate exempting holder from duty to wear mask
Where an employer requires its employees to wear masks, it must carefully check physician’s certificates presented by employees exempting them from this requirement. The majority view in case law is that an employee can only be exempted from wearing a mask where the certificate contains specific and reasonable information on why a mask cannot be worn. This applies in the relationship to the employer as well (Siegburg Labour Court, judgment of 16 December 2020 - 4 Ga 18/20; Münster Higher Administrative Court, decision of 24 September 2020 – 13 B 1368/20; Dresden Higher Regional Court, decision of 6 January 2021 – 6 W 939/20; dissenting with regard to submission of a medical certificate outside of the employment relationship: Berlin-Brandenburg Higher Administrative Court, decision of 4 January 2021 – 11 S 132/20).
As a general rule, there is no entitlement to employment without a mask at an establishment (Siegburg Labour Court, judgment of 18 August 2021 – 4 Ca 2301/20; Cologne Higher Labour Court, judgment of 12 April 2021 – 2 SaGa 1/21). Similarly, there is no entitlement to be moved to a workplace where no mask has to be worn, e.g. to a separate office (Hamburg Higher Labour Court, judgment of 13 October 2021 – 7 Sa 23/21).
The court held that if an employee does not supply proof that they are unfit to work because they are ill, but rather a certificate exempting them from a duty to wear a mask, then the employer does not generally fall into default of acceptance by continuing to instruct that employee to work at their previous position at which wearing a mask is required. In these circumstances, employees generally do not have claim to compensation for default in acceptance. However, if the employer culpably fails to provide the employee with a position that is “compatible with their state of health”, the court held that this could justify a claim for damages by the employee against the employer (Hamburg Higher Labour Court, judgment of 13 October 2021 - 7 Sa 23/21). The Federal Labour Court has not yet taken a final position on this issue; however, to avoid such damages claims, it is recommended to check whether there are positions at the company that are compatible with the health of such employees and are appropriate given their knowledge and skills. That may involve assigning such employees their own office or asking them to work remotely – to the extent their work can be performed remotely.
Other employment law measures (such as warning or termination) are not ruled out. The Cologne Labour Court ruled that a servicing technician’s termination for cause was valid, the technician having consistently refused to wear mouth and nose protection. The Court stated that the medical certificate the employee had provided his employer did not constitute sufficient evidence (Cologne Labour Court, judgment of 17 June 2021 – 12 Ca 450/21).
There are currently no quarantine obligations in connection with coronavirus infection in any of Germany's Federal States.
XII. School and childcare facility closures
Can employees stay home if schools or childcare facilities are closed?
If an employee’s own child is ill, they can stay at home temporarily to take care of the child and will continue to receive their salary in accordance with section 616 BGB or the child sickness payment pursuant to section 45 Social Security Code, Book V (Sozialgesetzbuch, Fünftes Buch, “SGB V”). If the child is healthy, but no suitable childcare is available, the employee is likewise entitled to continue to receive their salary pursuant to section 616 BGB. Time-wise, however, the limits of this temporarily paid leave of absence will quickly be reached. The provisions of section 616 BGB can also be excluded by the employment contract.
How long do employees receive the child sickness payment to look after their children?
If the period set forth in section 616 BGB ends, its conditions are no longer met, or the provision is contractually waived, then working employees with children who are sick or require childcare receive the child sickness payment pursuant to section 45(1) SGB V. Effective 18 January 2021, each parent has entitlement to the child sickness payment for a maximum of 30 working days per child under section 45(2a) SGB V – and in derogation of section 45(2) – with an annual cap of 65 working days. For single parents, the maximum is 60 working days, with an annual cap of 130 working days. Until 7 April 2023, parents also have entitlement under section 45(2a), sentence 3 SGB V to receive the child sickness payment where childcare facilities or schools are shut as an infection protection measure owing to the pandemic, where access to childcare provision is restricted and/or the duty to be physically present in lessons has been suspended, or where a public authority has recommended that facilities not be attended.
Who makes up for loss of earnings?
The payments are settled through Germany’s health insurance funds. Under section 45(1) SGB V, parents may apply to their respective health insurance fund for a child sickness payment amounting to 90% of their net earnings.
XIII. Exemption from tax and contributions for special payments and non-cash benefits
Between 1 March 2020 and 31 March 2022, aid and support in the form of allowances and benefits in kind paid by an employer to employees on account of the coronavirus crisis in addition to the wages already owed was tax-free up to an amount of EUR 1,500 – and hence also exempt from social security contributions – pursuant to section 3, no. 11a Income Tax Act (Einkommensteuergesetz, “EStG”).
Further, under section 3, no. 11b EStG, employees who work in facilities within the meaning of section 23(3), sentence 1, no. 1-4, 11, or 12 IfSG or section 36(1), no. 2 or no.7 IfSG (e.g. in hospitals or doctors’ practices) were able to be paid tax-free payments totalling up to EUR 4,500 during the period between 18 November 2021 and 31 December 2022 in addition to the wages they are already owed in recognition of their efforts during the coronavirus crisis.
Under section 3, no. 11b, sentence 5 EStG, only special benefits granted under section 150c SGB IX to employees of partial or full inpatient nursing care facilities who are responsible for compliance with statutory SARS-CoV-2 infection control provisions under section 35(1), sentence 6 IfSG can be granted tax-free, and only until 31 May 2023.
XIV. Deferring social security contributions
Can social security contributions be deferred?
It was possible to defer social security contributions, but not beyond the due date for the contributions for the month of May 2022 (which was 27 May 2022).
Currently, no parts of the world are classified as virus variant areas. There are therefore no longer any special vacation-related requirements in connections with the coronavirus pandemic.
