Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: This article was updated on March 30, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, compensation, immigration, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Germany currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the German government.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
There have been COVID-19 cases reported in all major European countries and in all parts of Germany, so restricting travel to “affected areas” would essentially constitute a complete travel ban. Employers have a contractual fiduciary duty, however, to refrain from sending their employees on business trips to those areas that are subject to a COVID-19-related travel alert issued by the Foreign Office (e.g., parts of Spain and Italy).
2. What should an employer do if an employee shares that they plan to travel to an affected area?
There are no legal measures the employer can take to prevent an employee from traveling in their personal time. The employer may indicate, however, that the employee will be asked to stay home (and ideally work from there) after their return for a certain period (14 days is often recommended), provided the employee traveled to an area subject to a COVID-19-related travel alert issued by the Foreign Office.
3. How should an employer handle employees who have family members who have traveled to affected areas?
The employer can require the employee to stay home (and ideally work from there) after the family members’ return for a certain period (14 days may not be sufficient, considering the accumulated incubation periods), provided the family members traveled to an area subject to a COVID-19-related travel alert issued by the Foreign Office.
4. Can we prevent employees from traveling to affected areas for personal reasons?
No. See answer to question #1.
5. What discrimination issues should employers address/be aware of?
The employer must not cast general suspicion of a COVID-19 infection on employees of a certain ethnic origin, e.g., on “any Italians” or “any Chinese”, and consequently treat them unequally compared to other employees.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
The employer is under a general obligation to protect its employees from workplace harassment, irrespective of the reason. Thus, employees engaged in harassment need to be disciplined. Usually, a written warning is a reasonable disciplinary measure. Dismissals may be considered only in particularly serious cases or upon recurrence.
7. Can employers take the temperature of employees who are coming to work?
It is highly doubtful whether temperature testing can at all be justified under European data protection laws, because a regular temperature does not prove the employee is not infected, and an increased temperature does not prove they are. At a minimum, the testing should be done by medical professionals, and anonymously, and without saving any data. Also, the works council has to be involved.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
See answer to question #7. Further, employees cannot be forced to undergo medical examinations of any kind. If there is an actual risk of a COVID-19 infection in the business or if a member of the workforce is verifiably infected, employees who refuse to be tested for COVID-19 can be required to stay home (and ideally work from there) for a certain period (14 days is often recommended).
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
If there is an actual risk of a COVID-19 infection in the business or if a member of the workforce is verifiably infected, the employer can instruct employees to wear personal protective equipment; works council consent is required if such equipment also has to be worn during breaks.
10. Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?
This depends on the individual case. If there is an increased risk of exposure to the virus, for example because the business is located in a severely affected area (e.g., some areas in North Rhine-Westphalia, Germany), the employer cannot prevent employees from wearing masks.
11. What if an employee requests to wear some type of mask as an accommodation?
Though employers must provide reasonable arrangements for the advancement of employees with disabilities, they are under no obligation to provide such employees with any type of mask to avoid a COVID-19 infection. This is part of the disabled employees’ personal care.
12. For employers that have events for large gatherings scheduled, should they cancel them?
Employers have a contractual fiduciary duty to limit their employees’ exposure to the virus as much as possible. These days, given the governmental actions taken to limit social contact in public to a minimum, employers are well advised to cancel large gatherings of any kind. At a minimum, the employer should consider leaving it up to the employees whether they want to participate.
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
The German government has issued a travel warning for all unnecessary, tourist travel abroad. More information can be found here.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country:
(a) How can an employer help the employee get back into your country?
Although the employer cannot directly help the employee, it may support the employee financially or by offering flexible working arrangements.
(b) In the case of a foreign employee, will the government’s travel advisories affect an employer’s ability to get the foreign employee back into the country? (Discuss if there are visa-related issues)
The EU has closed its external borders, i.e., non-EU citizens currently may not enter EU countries.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?
If employees are dismissed because the company is losing business, they are entitled to unemployment pay. They are also entitled to severance if a social compensation plan has been agreed to with the works council or with a union. Employees need to be paid during employer-instituted quarantines or temporary shutdowns, irrespective of whether they can actually work from home.
16. What are an employer’s workers’ compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
Usually, if an employee gets sick and is therefore unable to work, the employer must continuing paying the full salary for up to six weeks (statutory sick pay). An exemption applies if the sickness is self-inflicted. A COVID-19 infection could only be considered self-inflicted if the employee traveled to those areas subject to a COVID-19-related travel alert issued by the Foreign Office, and if such alert had already been issued before the employee started the travel.
WORKS COUNCIL/INDUSTRIAL UNIONS
17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
If employees are quarantined by the authorities and therefore lose their salary claim against the employer, they are reimbursed by the state pursuant to the Disease Protection Act.
18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
Persons who have had personal contact (regardless of travel) with a person infected with COVID-19 should contact the competent local public health authority immediately, regardless of symptoms.
19. Can an employer require employees to self-report having a COVID-19 infection?
Yes. Employees have a general contractual fiduciary duty to protect the employer from harm. Thus, if they are infected or suspect they have been exposed to someone in their immediate vicinity, they are obliged to communicate this openly to the employer.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
If the employee is quarantined by the authorities or is verifiably infected, the employer has to inform all employees who may have had contact with the affected employee so they have the chance to be tested. This is part of the employer’s fiduciary duty to help protect employees from harm. If possible, however, the infected employee’s identity needs to be kept confidential.
21. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
The employer may only ask employees to confirm that they have not traveled to areas under a governmental travel alert or areas that can be considered high-risk. The employees do not need to disclose their actual whereabouts during their non-work time.
The employer may ask employees if they feel "fit for work" from a medical point of view, and employees are obliged to answer the question truthfully. Beyond that, it is highly questionable from a data protection perspective whether employers may ask employees about any symptoms of illness, their temperature, etc. Please also see the answer to question #7.