Employment law and COVID-19 – what you need to know
Coronavirus has fundamentally changed day-to-day business operations. There is uncertainty on the part of both employees and employers. Here are the most important facts in brief and in alphabetical order:
The new protective measures standardized across Germany from 24 April 2021 mean that closures will apply pursuant to section 28b(1) no. 3, no. 4, no. 5, no. 7, no. 8, no. 10 Infection Protection Act from an incidence figure of 100. Generally speaking, company closures are a risk that must be borne by the employer and not the employee. The employee continues to receive remuneration. Whether this also applies in the case of closures ordered by the authorities, in particular nationwide/region-wide official closures, has not yet been clarified. To minimise the economic risk, companies are well advised to put in an application for short-time work (see XII. below for details).
Compulsory vaccination is not possible via a legal ordinance (section 20(6), (7) Infection Protection Act). Nor, as a general principle, can employees be required within their employment relationship to vaccinate themselves against the coronavirus. Employees’ basic rights stand in the way of any general instruction through a collective bargaining agreement, works agreement or employment agreement. These basic rights include the right to physical integrity (Article 2(2), sentence 2 German Basic Law) and general personal rights (Article 2(1), sentence 1 in conjunction with Article 2(1) German Basic Law).
Our assessment is that it will be possible to unilaterally instruct an employee to have a vaccination where that employee’s work involves contact with especially vulnerable people. Primarily, this concerns physicians and nursing staff (cf. section 2, no. 2 et seq. Coronavirus Vaccination Ordinance (Coronavirus-Impfverordnung) A further factor arguing in favour of this is that under section 23(3), sentence 1 Infection Protection Act all necessary measures must be taken in hospitals and nursing facilities to prevent infections being passed on to patients and spread further. Compulsory vaccination may constitute such necessary measure.
The general requirement for proof of vaccination in an employment relationship also conflicts with data protection concerns. Pursuant to section 26(1) Federal Data Protection Act or Article 6(1c) GDPR, processing personal data presumes that data collection is required for the employment relationship to be performed. Under section 26(3) of the Act, moreover, processing health data presumes that there are no grounds to assume that this is outweighed by the data subject’s legitimate interest in not processing the data. Permissible data processing can be assumed in facilities such as hospitals and nursing facilities in which vaccination status can be recorded pursuant to section 23a Infection Protection Act. But there is no general duty to provide proof of vaccination.
So if an employer refuses the employee entry to the establishment because they have no proof of vaccination although no compulsory vaccination applies and no proof of vaccination may be required, the employee is likely to be entitled to compensation for default in acceptance pursuant to section 615, sentence 1 German Civil Code.
Employee willingness to be vaccinated may be increased by offering a vaccination bonus for vaccinated employees. It is disputed whether such a “vaccination bonus”, excluding non-vaccinated employee from payment, is permissible. Should this be viewed as breaching the prohibition of victimisation set forth in section 612a German Civil Code, non-vaccinated employees would also be entitled to the bonus.
Pursuant to section 3(1) Continuation of Remuneration Act (Entgeltfortzahlungsgesetz), continued payment of salary/wages can be ruled out 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 2 Infection Protection Act 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 immunization. This suggests that not making use of a recommended and available immunization may constitute culpability brought upon oneself and therefore can rule out claims to continued payment of salary/wages.
Notwithstanding section 76(2), sentence 2 German Social Security Code, Book IV, an interest- and collateral-free deferral of social security contributions by the statutory health insurance funds was possible for companies/employers that found themselves in serious financial difficulties. Initially, that was limited to the contributions for March, April and May 2020. As a reaction to the stricter measures to stem the tide of infection that were decided upon in Autumn 2020, the sums for November and December 2020 could also be deferred upon request to the due date of the sums for January 2021, but not beyond this. Another option is for the January and February 2021 contributions to be deferred until the March 2021 contribution is due. The text of the corresponding announcement by Germany’s National Association of Statutory Health Insurance Funds (GKV Spitzenverband) can be found here (German).
Based on their duty of care pursuant to sections 618, 241(2) German Civil Code, employers are obliged over the ongoing pandemic to instruct employees to wear a mask at the establishment if distance rules cannot be complied with. The employer’s right to give instructions can be drawn on to instruct employees to cover mouth and nose at the establishment. If a works council exists, this will need to be involved (a codetermination right pursuant to section 87, no. 1 and no. 7 Codetermination Act (Mitbestimmungsgesetz).
The SARS-CoV-2 Ordinance on Occupational Health and Safety will continue to apply until no later than 30 April 2021. Pursuant to section 4 of the Ordinance, the employer must provide medical facemasks (mouth/nose protection) if:
- requirements on room occupation under section 2 of the Ordinance cannot be complied with (minimum space of 10 sqm for each person in the room or equivalent protection through partitions, ventilation or similar), or
- the minimum distance of 1.5 metres cannot be complied with, or
- routes to and from the place of work lead through buildings
and the employer has not taken any other measure that is at least as effective. The employees must then wear the masks provided or others of at least the same standard of protection.
If employees do not wish to wear a mask and have obtained exemption therefore in the form of a physician’s certificate, then employers must check the certificate carefully. 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 certificate outside of the employment relationship: Berlin-Brandenburg Higher Administrative Court, decision of 4 January 2021 – 11 S 132/20).
Should the employee submit such certificate, an employer must provide a workstation “compatible with the employee’s state of health” where such exists and this is required for effective protection against infection. Pursuant to the Corona Ordinance on Occupational Health and Safety (further details under VII. Health and safety), this can also involve instructing the employee to work from home or assigning the employee to an individual office. Should these possibilities not be available, then releasing the employee from their duties unilaterally will be the only option in our view. It has not been clarified whether the employee would have a claim to compensation for default in acceptance. Under Federal Labour Court case law, there is no claim to compensation for default in acceptance where such release takes precedence because it averts a direct and ongoing risk to employer interests or those of other staff members. Nor is there a claim to continued payment of salary/wages under the Continuation of Remuneration Act, for lack of illness.
As a general principle, further measures under employment and labour law (such as a warning) are ruled out, for lack of conduct constituting breach of duty. Terminating the employment relationship on person-related grounds will generally face the obstacle that the coronavirus pandemic is limited time-wise and that in this case a more lenient option than termination would be available, namely temporary release from duties.
The Work of Tomorrow Act (Arbeit-von-Morgen-Gesetz) introduced section 129 of the Works Constitution Act stating that meetings of, and votes on resolutions by, works councils can be held by video or conference call. The requirement is that it must not be possible for third parties to find out what is being discussed/decided, that nothing is recorded, and that the participants confirm their attendance to the chair in text form. The new section came into force with retroactive effect from 1 March 2020 and will remain in force initially until 30 December 2021. Similar arrangements apply for conciliation boards, economic committees (section 129(2) Works Constitution Act, new version), works meetings (section 129(3) Works Constitution Act, new version), executive representative committees (section 39 Managerial Employees Committee Act, new version), European works councils (section 41b European Works Council Act, new version) and works councils of European companies (section 48 German Act on the Participation of Employees in European Companies, new version) and of European cooperative societies (section 50 German Act on the Participation of Employees in European Cooperative Societies).
Pursuant to section 3, no. 11a Income Tax Act, aid and support in the form of allowances and benefits in kind paid by an employer to employees on account of the coronavirus crisis during the period 1 March to 31 December 2020 in addition to the wages already owed were tax-free up to an amount of EUR 1,500 and hence also exempt from social security contributions.
On 16 April 2020 the Federal Ministry of Labour and Social Affairs presented the COVID-19 health & safety standards. Key points are:
- Safety distance of at least 1.5 metres at work, whether in buildings, outdoors or in vehicles,
- Use of safety screens or, where that is not possible, face masks,
- Processes must be organised in such a way as to minimise contact – be it direct or through the intermediary of equipment – between staff,
- Home-working where possible,
- Persons suspected of being infected must leave work/stay at home until they have obtained a medical diagnosis,
- Additional hygiene measures in the form of handwashing facilities, sanitiser dispensers, more frequent cleaning of premises, compulsory compliance with “sneeze/cough etiquette”,
- Special protection for risk groups,
- Active communication of “Health first!” principle.
The full text can be found here (German).
On 10 August 2020 the Federal Ministry of Labour and Social Affairs issued the SARS-CoV-2 health and safety regulations. On the basis of the Occupational Safety Act (Arbeitsschutzgesetz – ArbSchG) and the ordinances on the Occupational Safety Act, these regulations clarify in part the above-mentioned health and safety standards presented by the Federal Ministry of Labour and Social Affairs on 16 April 2020. The main clarifications are the following:
- If the safety distance of 1.5 metres cannot be maintained, partitions are to be installed, whereby the distance from the top edge of the partition to the floor must be 1.5 metres in the case of seated workstations and 2 metres in the case of standing workstations. Both sides of the partitions are to be cleaned on a daily basis;
- In order to maintain hand hygiene, easily accessible handwashing facilities with running water, sufficiently gentle liquid soap and hygienic hand drying facilities (disposable towels made of paper or cloth) must be made available. Sanitary facilities are to be cleaned on a daily basis;
- Distance markers, a restriction of the number of persons, staggered use, an adjustment of the seating arrangement or barrier tape, too, can help maintain the safety distance of 1.5 metres in sanitary facilities as well as in breakrooms and canteens.
- Windows must be opened when beginning work in the rooms and then again at regular intervals, whereby increased ventilation intervals of 3 to 10 minutes are recommended.
- Ventilation and air-conditioning systems are not to be switched off during operating- and working hours. The operation of such systems without appropriate filters is to be avoided.
- Employees working from home are to be instructed with respect to working hours and breaks to be complied with, necessary documentation thereof, ergonomic workstation design and the use of work equipment.
- Business trips and meetings must be limited to what is necessary and suitable alternatives are to be looked into. Work equipment must generally only be used by one person; should this not be possible, it must be cleaned.
- When arranging shift schedules and working groups, where possible, the same persons should be assigned to the same shifts/working groups.
- The company must also inform visitors from outside the company (unless such visits are only of a brief nature) with respect to special protective measures within the company.
- Everyone employed within the company must be instructed on the infection risks and possibilities and participate in the implementation of the measures. In the case of temporary agency workers, the client company is directly responsible for the instruction. The relevant content of the instruction for employees whose work is governed by contracts for services and contracts for work is to be agreed on between the employer and the employers of the external companies.
- Should they request, employees must be enabled to obtain regular occupational advice and check-ups (elective preventive care), including, in particular, in relation to psychosocial strain that is caused by working from home.
The full text and special features of the SARS-CoV-2 Occupational Health and Safety Rule (SARS-CoV-2-Arbeitsschutzregel) for construction sites, agriculture and forestry, field work and delivery services as well as accommodation at places of work can be found here (German).
Under the SARS-CoV-2 Ordinance on Occupational Health and Safety (SARS-CoV-2 Arbeitsschutzverordnung), moreover, the following applies until the Bundestag revokes the state of nationwide epidemic under section 6(1), sentence 2 Infection Protection Act, and no later than 30 June 2021:
- Proximity of several persons for operational reasons must be reduced to a minimum.
- In businesses with more than ten employees, working groups that are as small as possible should formed and their working times staggered if possible.
- As a rule, medical facemasks must be provided and worn at work on the company premises. FFP2 filter masks and similar types are required where employees need additional protection due to specific demands.
- The employer must prepare a company hygiene concept based on the risk assessment and announce it at the company. This means that infection protection must be duly ensured, even where restrictions have been relaxed.
The text of the SARS-CoV-2 Ordinance on Occupational Health and Safety can be found here (German) and the First Ordinance Amending the SARS-CoV-2 Ordinance on Occupational Health and Safety can be found here (German).
A statutory duty for employers to offer tests has now been introduced through the Third Ordinance Amending the SARS-CoV-2 Ordinance on Occupational Health and Safety (see next section).
In addition, the Act to Improve the Implementation of Occupational Health and Safety (Arbeitsschutzkontrollgesetz) came into effect on 1 January 2021. This legislation bans contracts for work and employee leasing in the meat industry’s core business, also placing special requirements on communal accommodation. The full text can be found here: Federal Ministry of Labour and Social Affairs and Federal Government (both German).
Under the Third Ordinance Amending the SARS-CoV-2 Ordinance on Occupational Health and Safety, there is a duty to offer employees a corona test twice a week. These can be PCR tests or antigen rapid tests for professional use or use by the employees themselves.
The Ordinance only obliges employers to make the tests available, however. There is no obligation on employees to take the tests. Under section 3(3) of Germany’s Occupational Safety Act, the employer bears the cost of the duty to offer tests.
The text of the SARS-CoV-2 Ordinance on Occupational Health and Safety can be found here (German). This rule will initially remain in force until 30 June 2021. Germany’s regional states may issue stricter rules, but less strict rules are not permitted.
Due to the coronavirus pandemic, parental allowance was adjusted for a transition period.
The following adjustments applied until 31 December 2020:
- Parents working in critical infrastructure occupations were able to postpone periods of entitlement to parental allowance. These were supposed to be taken between 1 March and 31 December 2020. Where this was not possible by 31 December 2020, parents may take periods of entitlement to parental allowance after the pandemic ends, but no later than June 2021.
- Parents who hitherto availed themselves of the ‘partnership bonus’ parental allowance model have not lost their claim if one parent worked more or less than planned on account of the coronavirus pandemic. If parents have suffered a loss of income between 1 March and 31 December 2020 on account of the coronavirus pandemic, this will not be factored into the calculations of the parental allowance, nor will it have any negative impact on the amount of parental allowance granted for a further child.
The following modifications also apply until the end of 2021:
- Months subject to lower income owing to the coronavirus will continue to not be included when calculating parental allowance, section 2 b) (1), sentence 3 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.
- Payments in lieu of income (e.g. short-time allowance or unemployment benefits at the higher of Germany’s two tiers) due to coronavirus do not reduce parental allowance, section 27(4) in conjunction with section 3(1), sentence 1, no. 5 Act on Parental Allowance and Parental Leave. This is intended to help parents who to date have been working part-time and draw parental allowance.
In order to stem the spread of the coronavirus, the competent authorities can order quarantine for both people with an acute infection and those who are merely potentially infected. The form in which affected employees will continue to receive their salary depends on the category into which they fall:
- Employees who are unable to work due to a coronavirus infection will continue to receive their salary in line with the usual regulations. It is widely acknowledged that this will not change due to the quarantine measure that has been ordered.
- If an employee is not ill but is quarantined because an infection is suspected, a decision must then be taken on whether their work can be performed at the place of quarantine or not. If this is the case, the employee remains obliged to perform work and continues to receive remuneration. If the employee cannot work from the place of quarantine, then section 56 Infection Protection Act (Infektionsschutzgesetz - InfSG) will apply, under which employees receive compensation in the amount of their net salary for the first six weeks of quarantine. The employer will pay the compensation, but will be reimbursed by the competent authorities upon application. As of the seventh week of quarantine, the competent authorities will pay compensation equivalent to 67% of lost earnings directly to the employee. Some of the competent authorities are of the opinion that it is the employer that is primarily obliged to continue to pay employees’ salary, by application of section 616 German Civil Code. We do not consider this to be accurate in the current pandemic situation.
Like all days where an employee is unable to work on health grounds, quarantine periods ordered due to illness are not to be deducted from annual vacation. Where an employee is not ill, but has been placed under quarantine due to a suspected infection, they are not unfit for work and will still be obliged to work. If they work from home or from the place where they are in quarantine, they will continue to receive their salary from the employer as normal. If they are not able to do so, they will receive compensation in the amount of their current net salary. The quarantine days will not be deducted from their annual vacation.
Where employees are quarantined at home and able to work from home, they have an obligation to do so. The same applies if they are quarantined elsewhere and able to work remotely (mobile office) from that location. The only case where they are no longer obliged to work is if they become unfit for work due to illness. The situation is of course different where work can only be performed at the premises of the business, e.g. machine-based work.
To protect staff as a whole, employers have a legitimate interest in finding out whether employees plan to holiday/have holidayed in a risk area. We believe that employers are justified in putting the question to employees, provided they do not ask specifically which country/countries they plan to visit/have visited, but just whether it is/was a risk area.
According to ordinances enacted by the federal states, persons who travel to risk areas must immediately self-isolate for a limited period after returning to Germany. An up-to-date list of the international risk areas can be found on the website of the Robert Koch Institute (German).
As regards the matter of the continued payment of salary during quarantine, there are two different scenarios:
- If a holiday destination is only declared a risk area while the employee is on holiday there, then the principles outlined in IX. Quarantine apply, meaning that if the employee is self-isolating and at the same time unfit for work because they have a coronavirus infection, then they will continue to receive their salary in accordance with the customary rules. If they are self-isolating after returning from holiday but are not ill, then they have a claim for compensation pursuant to section 56 Infection Protection Act, which is paid through the intermediary of their employer.
- If, on the other hand, the holiday destination in question was already classified as a risk area before the employee went there and it was therefore foreseeable that they would have to self-isolate on their return, then they are personally responsible for the period of absence from work (‘fault against oneself’). In this case, they do not have these claims. In statutory terms, this has now been clarified as well by inserting section 56(1), sentence 3 Infection Protection Act.
Where an employee is late returning to work after a holiday, e.g. because they are unable to leave their holiday destination as scheduled due to coronavirus-related measures, or because flights to the country in question have been suspended, they do bear the ‘journey-to-work’ risk, but the employer may also have a duty under section 616 German Civil Code to continue paying the salary for a relatively short period of time if the travel restrictions were unforeseeable for the employee. However, where an employee travels to a risk area in full awareness of the (potential) risks, there is no claim to remuneration under section 616 German Civil Code. In statutory terms, this has now been clarified as well by inserting section 56(1), sentence 3 Infection Protection Act.
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 German Civil Code, or drawing on child sickness payment pursuant to section 45 German Social Security Code, Book 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 German Civil Code. Time-wise, however, the limits of this temporarily paid leave of absence will quickly be reached. The provisions of section 616 German Civil Code can also be excluded by the employment contract.
Should the period set forth in section 616 German Civil Code end, if its conditions are no longer met, or if the provision is contractually waived, then working employees of sick children or reliant on childcare receive child sickness payment pursuant to section 45(1) German Social Security Code, Book V. Since 5 January 2021, for each child and per parent the claim to child sickness payment exists for a maximum 20 working days, with an annual cap of 45 working days, pursuant to the new provision in section 45(2a) German Social Security Code, Book V, and in derogation of section 45(2). For single parents, the maximum is 40 working days, with an annual cap of 90 working days. The claim to child sickness payment now also exists 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 a public authority has recommended that facilities not be attended. An overview of further requirements for child sickness payment is here (German).
The payments are settled through Germany’s health insurance funds. Under section 45(1) German Social Security Code, Book V, parents may apply to their respective health insurance fund for a child sickness payment amounting to 90% of their net earnings.
Under the new provision in section 45(2b) German Social Security Code, Book V, the claim under section 56(1a), sentence 1, no. 1 Infection Protection Act is suspended over the period in which child sickness payment is drawn. So an employee must first exhaust their claim to child sickness payment under section 45 German Social Security Code, Book V before they become entitled to compensation under section 56(1a) Infection Protection Act. Under this rule to date, parents who are reliant on childcare have received compensation if the childcare facilities for their children have been officially closed to prevent the spread of infection and if they incurred a loss of earnings as a result. The new rules in section 45(2a), (2b) German Social Security Code, Book V took effect retroactively as of 5 January 2021 and will remain in force up to and including 31 December 2021. For childcare occasioned by the pandemic before 5 January 2021, accordingly, compensation under section 56(1a) Infection Protection Act is to be paid rather than child sickness payment under section 45 German Social Security Code, Book V. For periods since 5 January 2021 onwards, parents may have their entitlement to child sickness payment established subsequently.
In addition to the period before 5 January 2021, the claim to compensation under section 56(1a), sentence 1, no. 1 Infection Protection Act remains important for parents not insured under statutory health insurance schemes. This is because they do not belong to the category of persons entitled to child sickness payments under section 45 German Social Security Code, Book V. For the compensation payment under section 56(1a) Infection Protection Act, parents with private insurance must furnish proof to the authorities, as well as to the employer should it so request, that no other suitable childcare arrangements were available. They then receive compensation of 67% of the loss of earnings incurred (to a maximum of 2,016 euros per month) for no more than 10 weeks per working parent or 20 weeks for single parents. The maximum period of 10 or 20 weeks respectively need not be drawn on in one go. Instead, it may be distributed over several months. No entitlement exists over regular holidays not decreed on grounds of infection protection.
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. The introduction of short-time work is also subject to co-determination by the works council.
For employees to receive short-time allowance, the employer must report short-time working to the Federal Employment Agency and apply for short-time allowance. Information about the application procedure can be found here (German), amendments to the Federal Employment Agency’s directives between 23 December 2020 and 31 December 2021 here (German). Short-time allowance is granted if the requirements set out in sections 95 to 99 German Social Security Code, Book 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.
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 (Kurzarbeitergeld – KUG) 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 I, no. 4 German Social Security Code, Book III. Until the end of 2021, these will be relaxed as follows pursuant to the Ordinance on Facilitation of Short-Time Work (Short-Time Allowance Ordinance), as amended by the Second Ordinance Amending the Short-Time Allowance Ordinance for companies that have introduced short-time work by 30 June 2021: a company may register for short-time work if at least 10% of its workforce are affected by the reduction in the volume of work. The threshold before the coronavirus was one-third of the workforce.
And until the end of 2021 there will no longer be a requirement to build up negative working time balances (“minus hours”) before the short-time allowance is paid (section 1, no. 2 Short-Time Allowance Ordinance) in order to prove that the cut in working hours laid down in section 96(4) German Social Security Code, Book III was unavoidable.
Pursuant to the amended instructions of the German Federal Employment Agency (German), however, it has been the case since 1 January 2021 that employers must require employees to take as yet unplanned vacation from the vacation year in order to avert short-time work.
Any business that employs at least one person meets the operational requirements.
Personally, an employee meets the requirements for short-time allowance pursuant to section 98(1) German Social Security Code, Book III if they are in an employment relationship, have not been given notice of termination and are subject to compulsory insurance. Persons in marginal part-time employment (geringfügig Beschäftigte) therefore do not qualify for short-time allowance unless they are subject to compulsory insurance. For persons drawing short-time allowance, however, who take up secondary, marginal part-time employment while they are furloughed in the period from 1 January 2021 to 31 December 2021, their short-time allowance will not be reduced by the amount of the income they earn from such secondary employment.
Employers will be reimbursed in full and on a flat-rate basis by the Federal Employment Agency, upon application, for the social security contributions they have to pay on lost working hours (section 2 Short-Time Allowance Ordinance). Pursuant to the First Ordinance Amending the Short-Time Allowance Ordinance, the reimbursement will be in full from 1 January to 30 June 2021 and from 1 July to 31 December 2021 at 50% if short-time allowance was commenced by 30 June 2021 respectively. The 50% reimbursement of social security contributions can be increased to 100% where continuing professional development is undertaken over the period of short-time work up to 31 December 2021.
Under section 3 Short-Time Allowance Ordinance, short-time allowance will also be granted for temporary agency workers until the end of 2021 in accordance with the Second Ordinance Amending the Short-Time Allowance Ordinance where the respective business has introduced short-time work by 30 June 2021.
To date, the Federal Employment Agency has paid 60% of the last net salary to employees on short-time work – or 67% for employees who have children. On the entry into force of Social Protection Package II, employees whose working hours have been reduced by at least 50% receive 70/77% of their lost net salary as from the fourth month of drawing short-time allowance and 80/87% as from the seventh month. The rule was extended by the Act to Secure Employment (Beschäftigungssicherungsgesetz) until 31 December 2021 for all employees whose claim to a short-time allowance arises by 31 March 2021.
Pursuant to section 104(1) German Social Security Code, Book III, in the case of a reduction in the volume of work, short-time allowance is generally paid by the Employment Agency for a period of twelve months at maximum. Over the course of the pandemic, the entitlement period was first extended to 21 months in March 2020 through the Short-Time Allowance Payment Period Ordinance (Kurzarbeitergeldbezugsdauerverordnung - KugBeV). With effect as of 1 January 2021, the 2nd Short-Time Allowance Payment Period Ordinance extended this period to a maximum of 24 months for businesses that commenced short-time work before 31 December 2020, but not beyond 31 December 2021.
Based on the changes due to the Act to Secure Employment, income from marginal part-time employment taken up during the period of short-time working pursuant to section 8(1), no. 1 German Social Security Code, Book IV will not be applied against an employee’s short-time allowance in the period up to 31 December 2021.
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, 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 pronounced.
On the entry into force of Social Protection Package II, persons who were already seeking employment before the crisis and are drawing unemployment benefit pursuant to German Social Security Code, Book III (‘unemployment benefit I’) will continue to receive their unemployment benefit for an additional three months if their entitlement was otherwise due to end between 1 May and 31 December 2020.
The following distinction must be made here:
- Some courts have taken the view that, generally speaking, employers cannot unilaterally order employees to set up an office at 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 is the 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).
Although the employee has no claim to home-working, it has however already been the case under section 2(4) SARS-CoV-2 Ordinance on Occupational Health and Safety that employers must offer home-working to office or similar employees. The duty to offer home-working was extended to apply until 30 June 2021. There was therefore an obligation to offer home-working to office or similar employees where this does not conflict with imperative operational reasons. This obligation has now been regulated by the protective measures standardized across Germany in the form of the new section 28b(7), sentence 1 Infection Protection Act. A new feature of this Germany-wide rule is that employees must take up this offer under section 28b(7), sentence 2 Infection Protection Act. This does not apply where there are reasons why home-working would be either impossible or ineffective. The explanatory memorandum specifies spatial proximity, interruptions by third parties, or insufficient technical resources as reasons.The statute’s text can be found here (German).
Since 31 March 2021, employers in Berlin must ensure that no more than 50% of the office work stations at a place of work are in simultaneous use. Roles which absolutely must be performed at the place of work itself are exempted from this. Such roles include necessary contact with customers or patients and monitoring company facilities. The ordinance’s text can be found here (German).
Cooperation between the employer and the employees is important when it comes to preventing or stemming infection within a business:
- As part of the employer’s duty of care, it is incumbent upon employers to protect their employees’ health. They must inform them about the risks around infection and the risks of contracting infection, in particular if they are aware of infection within the company or anywhere where work is carried out. As a preventive measure, they should keep up with developments as they unfold and inform employees on a regular basis. They should make suitable recommendations with regard to hygiene. Further details under VII. Health and safety.
- Instructions to employees to make business trips to risk areas should be avoided because they could go beyond the limits of an employer’s reasonable discretion.
- Where employees are able to carry out their work from home or otherwise remotely, employers should think about instructing them to do so as a precaution.
- Where an employee has contracted an infection, the competent authorities will put them and all the people they have had contact with in quarantine. The employer is legally obliged to cooperate with the authority in the efforts to identify all the persons who had contact with the infected employee.
- The other employees can continue to go about their work. If the employer decides to take the precaution of closing the company temporarily, it will be obliged to continue to pay salaries.
- An employee who has been in a risk area may not decide autonomously to stay home from work as a precaution. They must however inform the employer in order to protect their co-workers and comply with their duty of loyalty towards their employer. The employer must then decide whether to release the employee from working duties for the duration of the incubation period or instruct the employee to work remotely (either from home or on a mobile basis).
The COVID-19 Working Hours Regulation (COVID-19-Arbeitszeitverordung) permitted exemptions from the Working Hours Act for the period 10 April to 31 June 2020, but they no longer apply as the period has expired.