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Pandemics – What Employers Need to Know

The coronavirus has been a matter of public concern for weeks. There are already several cases of the highly contagious lung disease in Germany. Health experts are currently still talking about an epidemic, i.e. a locally restricted infectious disease, but it could quickly turn into a pandemic – a transnational and transcontinental disease. In this client newsletter, we provide information on the consequences of a pandemic outbreak with regard to your rights and duties as an employer.

Can employees refuse to work due to fear of being infected?

In times of circulating serious infectious diseases, employees may want to stay at home as a precaution to minimise their risk of infection. However, employees only have a right to refuse to work if carrying out their work involves an objectively significant personal risk to their health and life and goes beyond the general risk of infection. Case law recognises a right to refuse to work in relation to a workplace exposed to asbestos, for example (see German Federal Labour Court judgment of 19 February 1997, reference 5AZR 982/94). If sick workers stay at home or are sent home by the employer, it is assumed that the other employees are not exposed to a higher risk on the way to work or when at work than would otherwise be the case through contact with their environment. Therefore, a precautionary absence from work would legally qualify as an inadmissible refusal to work.

Can employees insist on working from home?

Employees do not generally have the right to work from home for fear of infection. Different rules apply only if working from home has been contractually agreed or the employer expressly declares it to be permissible due to special circumstances such as a pandemic.

What happens if a large number of employees become ill?

If a large number of employees in the company fall ill, in a worst-case scenario operations must be suspended in order to protect the other staff against infection. In this case, the risk is borne by the employer. The employer must then continue to pay sick employees and also compensate healthy employees who cannot be put to use.

However, it is possible to encourage healthy workers to offset the lost hours against their overtime or to take annual leave. Arranging short-time working is also an option. However, this would then have to be agreed or permitted under an individual agreement or under collective bargaining law.

If a large number of employees are ill and there is thus a risk of operations being interrupted, this is regarded as an “exceptional case” within the meaning of the German Working Hours Act, making it possible to impose overtime. This way, operations can be maintained using the remaining healthy employees. Employees must comply with this order due to their general duty of loyalty.

Employers can also consider giving healthy employees work for an extended period that is different from their contractually agreed duties. This depends on the provisions of the employment contract and the scope of the employer’s authority to issue instructions. Even in the event of a pandemic, a case-by-case examination is required.

Can employees refuse to go on business trips or secondments?

Generally, employees cannot refuse to go on a business trip or secondment to affected regions. They only have the right to do so if the German Foreign Office has issued a travel warning, or the WHO or Robert Koch Institute have advised against it. The German Foreign Office issues such travel warnings only in exceptional cases, however. If this happens, German citizens currently in the affected regions will also be ordered to leave the respective country. If there is such a travel warning, the employees concerned retain their entitlement to remuneration. They may, however, be instructed to perform work other than that which has been (justifiably) refused.

What is the best way to deal with staff returning from risk areas?

As a precaution, companies should release employees returning from risk areas from their duty to work and ensure that they do not return to the workplace. This follows from the employer’s duty of care towards the rest of the workforce. If the employer releases returners from their duty to work, they retain their entitlement to remuneration.

Before the employees return to the workplace, employers may also require them to provide a medical certificate confirming that they have not been infected with the disease.

If the employer needs returned employees who have been sent home to “self-isolate” to carry out work duties, working temporarily from home is a possible option. To this end, the employer must provide the necessary technical equipment, such as a laptop.

If an employee is quarantined by public authorities, the employer must cover the loss of earnings for a maximum period of six weeks (section 56, German Protection against Infection Act (IfSG)). Under the conditions of section 56 f of the German Protection against Infection Act, however, the employer may have these expenses reimbursed.

How do you deal with sick employees who come to work despite showing relevant symptoms?

The employer has the right to release employees (with payment) who show symptoms of a pandemic infectious disease. The sick person’s right to work is less important than the employer’s interest in protecting the rest of the workforce and ensuring the smooth running of the business.

In the event of an acute pandemic, does the employer have a right to ask about the employee’s latest whereabouts?

During relevant risk periods, the employer has the right to ask sick employees with known symptoms whether they have been in a pandemic risk area, for example during their holidays. Employees must provide information as to whether or not they have been in a risk area. They do not have to specify exactly where, however.

Does it make sense for the company to have a “pandemic plan”?

An operational contingency plan for pandemics would seem sensible. Such a “pandemic plan” defines the procedure to be followed if infectious diseases occur in the workforce. It should be determined which critical functions must be staffed in order to maintain operations. The employer should involve as many different bodies as possible in drawing up the plan – from the workforce to the works council and company physician, right through to the local authorities responsible for occupational health and safety.

Does the works council have to be involved in drawing up a “pandemic plan”?

The works council has no codetermination right when drawing up a “pandemic plan” as such. However, many of the measures to be taken in the event of a pandemic are subject to codetermination. Examples include (hygiene) codes of conduct, overtime regulations and the assignment of work other than that which is contractually agreed. In addition, some of these measures may already be the subject of existing workplace agreements. Moreover, there is a risk that conflicting individual contractual agreements exist. For this reason, there is virtually no alternative to establishing a “pandemic plan” as a formal workplace agreement.

Conclusion

If you see a need for action in your company or are dealing with issues related to pandemics, the lawyers in our employment law department will be happy to assist you.

Compliments of CMS Hasche Sigle, a Member of the EACCNY