Germany – Covid-19: Labor Law.

Since the outbreak of the COVID-19 pandemic in spring 2020, we have already gone through several “waves” that were characterized by a wide variety of measures. In the meantime, the legislature had reacted to the increased number of infections by introducing the 3G rule and the obligation to provide evidence for the health sector, as well as by introducing a home office obligation. Most recently, a heavier autumn and winter wave was forecast in some cases. Due to this assumption and the associated risk of sickness-related staff absences, which can lead to a strain on the critical infrastructure, a SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV nF) came into force again on October 1st, 2022. However, this was canceled at short notice on February 2, 2023. According to the federal government, the reason for this is the positive development of the infection situation in Germany. Reason enough to (again) familiarize yourself with which requirements still apply, how case law has developed in the meantime with regard to corona-related labor law issues and which important labor law aspects employers (still) have to deal with when dealing with the corona virus have in mind.

What are the (protective) obligations with regard to the corona virus?

Employers have an obligation to take the necessary and appropriate measures to protect the health of their workers. With regard to the corona virus, this means that employers are obliged to comply with the applicable legal situation and the restrictions decided by the federal government and the respective federal states to contain the COVID-19 pandemic and also to observe the recommendations of public authorities (e.g. of the Ministry of Health, the Robert Koch Institute and the responsible local health authorities or travel warnings from the Federal Foreign Office) and to inform the employees if necessary. Employers must take the appropriate and proportionate protective measures to reduce the risk of infection in the workplace.

• Repeal of the Corona-ArbSchV nF 
  On October 1st, 2022, the new version of the Corona-ArbSchV of September 26th, 2022 (Corona-ArbSchV nF) came into force, which obliged the employer to define the necessary protective measures for operational infection protection in a company hygiene concept and implement. However, the Corona-ArbSchV nF was repealed prematurely with effect from February 2, 2023 before it actually came into force on April 7, 2023. With the abolition of the Corona ArbSchV nF, the employer is no longer obliged to create a company hygiene concept. 
• Employer’s duty of care
  Irrespective of whether a Corona-ArbSchV is currently in force or not, the employer is already always obliged to do so on the basis of § 3 ArbSchG, which specifies the employer’s duty of care from § 618 Para. 1 BGB to define or adapt measures of operational infection protection based on the respective work-related risk of infection in order to prevent potential health impairments of its employees at work. As part of a risk assessment, he must select and implement suitable measures in accordance with Section 5 ArbSchG. Before the employer carries out personal measures, he must first take technical and organizational protective measures. 

If he comes to the conclusion that these are not sufficient to contain the occurrence of infection, further measures can be taken if necessary (§ 4 ArbSchG). In order to implement occupational health and safety measures, the employer can issue instructions regarding the order and behavior of employees in the company within the scope of their managerial rights in accordance with Section 106 Sentence 2 GewO. In doing so, he must always take reasonable discretion into account.

Previous specific inspection obligations of the employer

This obligation to carry out a risk assessment was specified in the Corona-ArbSchV nF, according to Section 2, Paragraph 2 of which several enumerated minimum inspection obligations applied to the employer. According to this, the employer had to check the following measures in particular during the risk assessment:

• Minimum distance, hand hygiene and cough and sneeze etiquette, ventilation
  First of all, the employer’s obligation to check related to the well-known measures, i.e. maintaining a minimum distance of 1.5 meters between two people, ensuring hand hygiene, compliance with the cough and sneeze etiquette and ventilation of indoor spaces to protect against infection § 2 Para. 2 No. 1 to 4 Corona-ArbSchV nF
• Contact avoidance
  In addition, the reduction of business-related personal contact had to be checked § 2 Para. 2 No. 5 Corona-ArbSchV nF The BMAS suggested in its FAQs as suitable measures the division of the workforce into small, preferably constant working groups and the holding of video conferences instead of face-to-face meetings.
• Home office 
  Under Section 2 (2) No. 6, the Corona-ArbSchV nF also stipulated that the employer, as a measure in the risk assessment, should offer employees the opportunity to carry out suitable activities from the home office if there are no operational reasons to the contrary check has. This was only an obligation to check an offer from home office.
• Corona tests 
  According to § 2 Para. 2 No. 7 Corona-ArbSchV nF, the employer was obliged to check as part of the risk assessment whether free corona tests should be offered regularly. Employees are free to accept any company test offers.
• Masks were
  compulsory in companies if the risk assessment showed that if the minimum distance of 1.5 meters was not maintained or if physical contact was required for work or if several people were indoors at the same time, technical and organizational protective measures were not sufficient to protect employees (Section 2 (3) Corona -ArbSchV nF). The employer then had to provide its employees with medical face masks (mouth and nose protection) and the employees then had to wear them.

BMAS recommendations for workplace infection protection against COVID-19, flu and colds

The specific testing obligations and specifications described above no longer apply with the repeal of the Corona-ArbSchV nF on February 2nd, 2023. However, the employer’s obligation contained in the Occupational Health and Safety Act to carry out a risk assessment, in the context of which suitable measures to prevent potential health impairments are to be selected and implemented, remains in place. If protection against infection did not play a major role in the broad masses before the outbreak of the COVID-19 pandemic, this perception will have shifted, at least for the time being, due to the COVID-19 pandemic experienced, not only with regard to the corona virus, but also with regard to influenza viruses and cold pathogens. The recommendation now issued by the Federal Ministry of Labor and Social Affairs can serve as a guide here. continue to implement proven protective measures to avoid infections at work and to minimize staff absences due to illness. According to the BMAS, one of the proven protective measures is above all the AHA+L rule, ie 

• Keep distance, 
• observe hygiene;
• Wear (respiratory) masks, ie if the minimum distance of 1.50 m is not maintained and when staying indoors, people who show typical cold symptoms such as a cough or runny nose should wear masks; and
• correct ventilation). 

In the event of a high level of infection, for which the BMAS can use situation reports from the Robert Koch Institute, the Influenza Working Group or the official notifications from the regional health authorities, the BMAS also recommends

• the reduction of business-related personal contacts, ie the increased use of digital communication options, the reduction in the number of people present indoors at the same time and the completion of suitable activities in the home office; and
• the protection of vulnerable people, ie also symptom-free people should then wear a breathing mask if there is contact or interaction with vulnerable people.

separation obligation

At federal level, it is (still) provided that people infected with the coronavirus (as other sick people) can be isolated, i.e. in particular that they can be ordered to go into domestic isolation (§ 30 Para. 1 S. 2 IfSG). In addition, the state governments are empowered to issue corresponding ordinances and prohibitions to combat communicable diseases (Section 32 sentence 1 IfSG). The state governments, in turn, can transfer the authorization to other bodies by statutory order (Section 32 sentence 1 IfSG). This initial situation means that there are different regulations on the separation obligation in the federal states. Until recently, however, at least in all federal states there was still a separation obligation, albeit with different specifications (e.g regarding the duration of isolation), for people infected with the coronavirus. In Baden-Württemberg, Bavaria and Schleswig-Holstein, the obligation to isolate people who tested positive for the corona virus ceased to apply on November 16, 2022 and in Hesse on November 23, 2022. 

In Bavaria, for example, mandatory protective measures for those who have tested positive take the place of the obligation to isolate. This includes a general obligation to wear masks outside one’s own home (at least for a period of five days) as well as entry and activity bans in medical and nursing areas with vulnerable groups of people and in certain communal accommodations (general decree on protective measures for those who have tested positive for the SARS-CoV-2 coronavirus). individuals as of November 15, 2022). On the other hand, it is recommended that people who have tested positive (for a period of at least five days) voluntarily go into self-isolation, pursue their professional activity from their own home as far as possible, avoid unnecessary contact with other people.

In Bavaria, this means for the workplace that employees who have tested positive for the corona virus are also allowed to appear there, but are obliged to wear a mask. They are only advised to work from home whenever possible. In view of the obligation to check prescribed in the Corona-ArbSchV nF with regard to the offer of home office and the employer’s duty of care towards other employees, in such a case the employer will allow the person who has tested positive to work from home, if possible, at least expressly have to offer.

In view of the regulatory powers of the federal states, events in the individual federal states should also be kept in view and, against this background, the operational hygiene concepts should be adapted if necessary.

Elimination of the facility-related obligation to provide evidence

The so-called facility-related obligation to provide evidence, which was anchored in Section 20a IfSG until recently, expired on December 31, 2022 and Section 20a IfSG was repealed with effect from January 1, 2023. This means that people who work in hospitals, (dental) medical practices, emergency services and outpatient care facilities no longer have to submit proof of vaccination or recovery or a medical certificate stating that they cannot be vaccinated against COVID-19. 

What aspects do employers have to consider when traveling abroad?

On June 1, 2022, the obligation to provide proof of being vaccinated, recovered or tested negative ended when entering Germany. On the other hand, strict registration, proof and quarantine regulations still apply to people entering the country from a virus variant area. The categories of “simple” risk areas and high-risk areas have been dropped. However, since January 6, 2023 (due to the Eighth Ordinance to Amend the Coronavirus Entry Ordinance of January 6, 2023), a subcategory of the virus variant area has been added, which China has been included in since January 9, 2023. According to this, there are now two types of virus variant areas to which different obligations of those entering the country are linked.

Virus variant area within the meaning of § 2 S. 1 No. 3a lit. b of the Corona Entry Ordinance

• The virus variant area within the meaning of Section 2 Sentence 1 No. 3a lit. b of the Corona Entry Ordinance is an area/country in which a specific variant of the coronavirus that is not yet or no longer widespread in the Federal Republic of Germany is associated with worrying Properties occur in which (aa) certain vaccines approved in the European Union or a previous infection with the coronavirus show no or only limited protection against this variant or (bb) it shows other similarly serious properties that give cause for concern, in particular because they have more severe disease courses or causes increased mortality.
• When returning from such virus variant areas, in addition to the obligation to register and test or provide evidence (§§ 5, 5a of the Corona Entry Ordinance), a quarantine of 14 days must be observed (§ 4 of the Corona Entry Ordinance).
• Under certain conditions, there are exceptions to the obligation to go into quarantine. For example, domestic quarantine for vaccinated people can in principle be ended prematurely if they submit proof of vaccination to the competent authority stating that the people have been fully vaccinated with a vaccine against COVID-19. This only applies to those vaccines for which the RKI has determined and expressly  announced on its website with reference to Section 4 of the Corona Entry Ordinance that they are sufficiently effective against the corresponding virus variant. In addition, limited transport options are to be expected when returning from virus variant areas. Those entering the country should also find out about the test verification obligations that apply to them, which are also regulated in the Coronavirus Entry Ordinance.
  
  Employees returning from abroad can thus continue to be subject to the quarantine obligation. With regard to quarantine obligations, the employer should have a corresponding right to information vis-à-vis the employee and the employee should be obliged to notify the employer. This should also apply to the information as to whether an employee has stayed in a virus variant area. Employees who are temporarily not allowed to enter the company because they are subject to an official quarantine order could, in principle, be instructed to work temporarily from their home office, if this is possible.

Virus variant area within the meaning of § 2 S. 1 No. 3a lit. a of the Corona Entry Ordinance

• The newly introduced virus variant area within the meaning of Section 2 Sentence 1 No. 3a lit alarming properties within the meaning of letter b (see above) threatens to occur due to (aa) a speed of spread or incidence that has been determined or assumed there and is higher than in the Federal Republic of Germany in connection with (bb) insufficient data, which allow conclusions to be drawn about the severity of the disease.
• If an area experiences this classification, such as China currently, there is (only) a test or proof obligation with regard to entry into the Federal Republic of Germany. This means that as with entry from a virus variant area within the meaning of Section 2 Sentence 1 No. 3a lit. b of the Corona Entry Ordinance, persons who have reached the age of twelve must have proof of a test upon entry (Section 5 of the Corona Entry Ordinance) and must have a test carried out immediately after entry at the request of the competent authority for the purpose of random checks.

Travel to virus variant areas

• It is not possible for the employer to prohibit a private trip. In the event of an infection with the corona virus (also associated with an obligation to isolate) or an impossibility of work due to quarantine, the entitlement to continued payment of wages may be lost due to the employee’s own fault.
• The cases in which an employee who is contractually obliged to travel on business can refuse the employer’s order for a business trip abroad (which is not absolutely necessary) depends on whether the instruction in the individual case corresponds to “reasonable discretion”. In the assessment z. For example, it should be considered whether there is an official travel warning from the Federal Foreign Office, whether there are obstacles to be expected when returning or because of the current infection situation, or whether there is an increased health risk due to belonging to a risk group.

What should be considered when continuing to pay employees in quarantine?

Basically, the following distinction is made here:

• An employee who has been placed under official quarantine and performs his work in the home office retains his claim for remuneration against the employer. If an employee in quarantine is actually unable to work due to COVID-19, there is a basic entitlement to continued payment of wages in the event of illness for the duration of the illness in accordance with Section 3 EFZG. This applies at least if the official quarantine is imposed from the outset because of an illness resulting in an inability to work and not just because of a suspicion of illness. However, a claim to continued payment of wages may be excluded due to the fault of the employee, e.g. B. flies to a high-incidence area on vacation despite a travel warning from the Federal Foreign Office. According to a new decision by the labor court in Kiel (judgment of June 27, 2022 – 5 Ca 229f/22), incapacity to work should not be at fault within the meaning of Section 3 EFZG if an employee travels to a country that was then designated as a risk area and the incidence there at the time of the trip is lower than in Germany. In any case, if the incidence values ​​in the holiday area are not significantly higher than the incidence value at the place of residence and work, the employee is not grossly violating his own interests, according to the Kiel Labor Court. The labor court clarifies that the assessments of Section 56 (1) sentence 4 IfSG, which excludes compensation for people who take avoidable trips to risk areas, do not apply in the context of continued payment of wages.
• If an employee has only been placed under official quarantine as a precautionary measure (e.g. because he has had contact with an infected person or because he carries the virus without having developed any symptoms himself), the employee may have a claim for compensation under Section 56 IfSG, which is granted for the first six weeks in the amount of the loss of earnings. From the beginning of the seventh week, compensation has been granted according to a new regulation since March 31, 2021 in the amount of 67 percent of the loss of earnings incurred, but at a maximum of EUR 2,016 per full month (previously compensation was paid from the seventh week in the amount of sick pay granted). According to the change in the law since 31. March 2021 also cases of precautionary “self-isolation” in the run-up to an official quarantine order, if such could have been issued at the time of the precautionary isolation. The employer must pay compensation to the competent authority for the duration of the isolation, for a maximum of six weeks, but can request reimbursement from the competent authority (Section 56 (5) IfSG). According to the widespread opinion, however, the claim for compensation is fundamentally subsidiary to other claims for continued payment of wages, for example from Section 616 of the German Civil Code. So spoke to pay the compensation for the competent authority, but can request reimbursement from the competent authority (§ 56 Para. 5 IfSG). According to the widespread opinion, however, the claim for compensation is fundamentally subsidiary to other claims for continued payment of wages, for example from Section 616 of the German Civil Code. So spoke to pay the compensation for the competent authority, but can request reimbursement from the competent authority (§ 56 Para. 5 IfSG). According to the widespread opinion, however, the claim for compensation is fundamentally subsidiary to other claims for continued payment of wages, for example from Section 616 of the German Civil Code. So spokeIn its judgment of June 27, 2022 – 5 Ca 229f/22, the labor court in Kiel granted the plaintiff employee a right to continued payment of wages in accordance with §  3 para. 1 sentence 1, 4 EFZG, on the grounds that even a symptom-free infection with a pathogen (here COVID-19) can lead to an inability to work triggering a claim for continued payment if the work cannot be performed in the home office. From the assessments of §  56 IfSG it follows that the isolation according to the IfSG in the event of incapacity to work does not prevent the creation of the right to continued payment of wages. The appeal is against this decision because of fundamental importance (disputed relationship between §  3 Abs. 1 EFZG and § 56 IfSG)been approved. In the meantime, the question of whether the right to compensation under Section 56 (1) IfSG does not apply if an employee knowingly spends his vacation in a risk area and thereby consciously accepts a subsequent quarantine was controversial. In the meantime, Section 56 (1) IfSG has been supplemented by a provision according to which those who, by not taking an avoidable trip to a risk area that was already classified at the time of departure, would not have received compensation for loss of earnings would have avoided a ban on their previous work or would have avoided isolation can. The relevance of the claim for compensation according to §  56 paragraph 1 IfSG should currently be limited, since there is currently no longer an obligation to isolate contact persons and theThe coronavirus entry regulation currently only provides for a quarantine obligation when entering from a virus variant area, although no country is currently designated as such and therefore (with the exception of people who are proven to be infected) there is no official quarantine order. However, depending on the pandemic situation, stricter quarantine regulations could be introduced again in the future, or countries could be introduced as virus variant areas.

Are vacation days spent in quarantine to be granted retrospectively?

If an employee falls ill during their vacation,  the days of incapacity for work documented by a medical certificate are not counted according to § 9 BUrlG. According to the ruling of the highest court, in this case the purpose of the holiday, i.e. the exemption of the employee from the obligation to work for the duration of the holiday, cannot occur because the obligation to work has already ceased due to incapacity to work due to illness. Other holiday-disturbing events are generally within the employee’s area of ​​risk. The extent to which this also includes the official order for quarantine based on the IfSG cannot yet be clearly answered.

So far, the line has emerged in case law that employees who have been in officially ordered quarantine during their vacation due to a COVID-19 infection, but without a medical certificate, are not entitled to be granted additional vacation days spent in quarantine (LAG Cologne, judgment of December 13  ,  2021 – 2 Sa 488/21; LAG Düsseldorf, judgment of October 15  ,  2021 – 7 Sa 857/21).

The judgment of the Hamm Regional Labor Court of January 27, 2022 – 5 Sa 1030/21, on the other hand, had to deal with the question of whether an employee who was in quarantine at home for a period of vacation due to an official separation notice as a result of contact with a person infected with COVID-19 had to spend with an infected person and was demonstrably not infected himself, the paid vacation is to be granted afterwards. The Hamm Higher Labor Court affirmed this, analogously applying §  9 BUrlG and awarded the employee the credit for vacation days during the quarantine.

On the other hand, the Rhineland-Palatinate State Labor Court (ruling of April 7, 2022 – 2 Sa 341/21), the Baden-Württemberg State Labor Court (ruling of February 16, 2022 – 10 Sa 62/21) and the Schleswig State Labor Court rejected the decision -Holstein (judgment of February 15, 2022 – 1 Sa 208/21) an analogous application of § 9 BUrlG if an employee who is not unable to work and is ill during his vacation due to an official separation notice after contact with a person infected with COVID-19 dies not allowed to leave the apartment.

Due to the inconsistent jurisprudence of the lower courts, the opinion of the Federal Labor Court is eagerly awaited. Of the above decisions, only the judgment of the Düsseldorf Higher Labor Court is legally binding. In the case of the other decisions, appeals are pending at the Federal Labor Court. In the appeal proceedings regarding the judgment of the Hamms Regional Labor Court (Az. 9 AZR 76/22), the Federal Labor Court suspended the proceedings and appealed to the European Court of Justice for a preliminary ruling. This is to decide whether it is compatible with European law that vacation days are not to be granted again under German labor law, if an employee who is not himself ill with COVID-19 had to comply with an officially ordered home quarantine during his vacation. It is also to be expected that the remaining revision proceedings will be suspended, and a uniform decision can therefore be expected.

Since September 17, 2022, however, due to the new regulation in Section 59 (1) IfSG, all “new cases” have been subject to the fact that quarantine times are no longer (may) be counted towards holiday leave.

Can employees be required to work from home?

If there is agreement with the employee, the (temporary) assignment from the home office is unproblematic. Apart from that, the employer can only order home office as a place of work through managerial law within the framework specified by the employment contract or collective bargaining principles. If neither individual nor collective agreements contain a specification of the place of work, the employer can specify this by instruction. However, the instruction to work from the home office must correspond to “reasonable discretion”, which in turn depends on a comprehensive weighing of interests, within which aspects such as the employer’s obligation to protect the health of employees must also be included. If, on the other hand, a specific place of work (outside the home office) is contractually stipulated and there is also no reservation of transfer, the employer’s order to the employee to (temporarily) work from the home office would not be covered by the employer’s managerial right. However, in emergencies, the employee is obliged to also take on any tasks not covered by the employment contract, insofar as these are necessary to avert damage to the employer and they are reasonable for the employee. In some cases, this could also justify a corresponding obligation to (temporarily) work from home – despite a contractual arrangement for a different place of work. to work (temporarily) from your home office is generally not covered by the employer’s right to direct. However, in emergencies, the employee is obliged to also take on any tasks not covered by the employment contract, insofar as these are necessary to avert damage to the employer and they are reasonable for the employee. In some cases, this could also justify a corresponding obligation to (temporarily) work from home – despite a contractual arrangement for a different place of work. to work (temporarily) from your home office is generally not covered by the employer’s right to direct. However, in emergencies, the employee is obliged to also take on any tasks not covered by the employment contract, insofar as these are necessary to avert damage to the employer and they are reasonable for the employee. In some cases, this could also justify a corresponding obligation to (temporarily) work from home – despite a contractual arrangement for a different place of work. to avert damage to the employer and they are reasonable for the employee. In some cases, this could also justify a corresponding obligation to (temporarily) work from home – despite a contractual arrangement for a different place of work. to avert damage to the employer and they are reasonable for the employee. In some cases, this could also justify a corresponding obligation to (temporarily) work from home – despite a contractual arrangement for a different place of work.

Also interesting in this context: In October last year, the Federal Ministry of Labor and Social Affairs launched a legislative initiative for a legal regulation on mobile work. We will keep you up to date on the further development of the legislative initiative on our topic page on mobile work .

What obligations do employees have?

• Despite the pandemic situation, employees are still obliged to carry out their work as usual. This obligation only lapses if the work would be unreasonable, for example if the employer does not adequately fulfill his duty to protect. Unless it has been expressly agreed that employees can work from home, employees are generally not allowed to stay away from work simply out of fear of infection with COVID-19.
• Business trips must continue to be taken if they are owed under the employment contract. Whether and in which cases an employee who is contractually obliged to travel on business can refuse the order of a (not absolutely necessary) business trip by the employer abroad (or possibly also to a risk area within Germany) depends on whether the instruction in the individual case corresponds to “reasonable discretion”. The type of usual activity and the urgency of the order must also be taken into account in the assessment.
• In principle, an employee who is unable to work is not obliged to tell the employer what illness he is suffering from. According to the prevailing opinion, employees should be obliged to inform their employers in the current situation due to their duty of care under Sections 242, 241 (2) BGB and Section 15 (1), Section 16 (1) ArbSchG and the employer’s duty to protect their colleagues if they are infected with COVID-19 or if quarantine has been ordered for them (especially since the public health department sometimes provides the relevant information with a delay). In addition, the employer’s right to information should currently be affirmed, at least with regard to information as to whether the employee has stayed in a virus variant area. Companies should name contact persons or suitable reporting channels for this and must design the procedure in accordance with data protection regulations. Details on the rapid reaction to suspected cases should be regulated in a company pandemic plan or a corresponding company agreement (see above). The disclosure of personal data of employees who have been proven to be infected (in particular the name of the employee) is only lawful if this is absolutely necessary for precautionary measures in favor of the contact persons. This will usually have to be denied. The disclosure of personal data of employees who have been proven to be infected (in particular the name of the employee) is only lawful if this is absolutely necessary for precautionary measures in favor of the contact persons. This will usually have to be denied. The disclosure of personal data of employees who have been proven to be infected (in particular the name of the employee) is only lawful if this is absolutely necessary for precautionary measures in favor of the contact persons. This will usually have to be denied.

What happens if schools or day care centers are closed?

If employees have to look after their children at home, for example because the kindergarten or school is closed or the children are ill and no other care is available, the following applies in principle:

• If there is no other care option for the child and the employee is absent from work for a “relatively insignificant amount of time”, the employee has a statutory right to continued payment of remuneration under Section 616 of the German Civil Code, subject to other employment or collective bargaining agreements.

• Under certain circumstances, there is a limited right to paid leave under the employment contract.
• Time credits can also be brought in or vacation can be taken.
• If the requirements of § 45 SGB V are met, there is also a legal entitlement to child sickness benefit. In the course of the pandemic, the number of so-called children’s sick days was recently expanded for the year 2023 by the “Act to Strengthen the Protection of the Population and in particular Vulnerable Groups of People from Covid-19”.
  • In 2023, parents with statutory health insurance will be entitled to child sickness benefit for a maximum of 30 days (instead of 10 days) per child and single parents with statutory health insurance for a maximum of 60 days (instead of 20 days) per child. In the case of several children, the entitlement is also limited to a maximum of 65 days (instead of 25 days) per parent, or 130 days (instead of 50 days) for single parents (§ 45 Para. 2a S. 1 and 2 SGB V).
  • On the other hand, the entitlement also exists up to and including April 7, 2023 in cases in which childcare facilities and schools are temporarily closed for reasons of infection protection, there is a ban on entry, school or company holidays have been ordered or extended, compulsory attendance in a school has been lifted, the Access to childcare has been restricted or the child does not attend the facility due to an official recommendation (§ 45 Para. 2a S. 3 SGB V). The relevant case is thatEvidence of this from the health insurance company in a suitable manner, whereby the health insurance company may request the submission of a certificate from the facility or school. From April 8, 2023, the entitlement to child sickness benefit will again only exist if the child falls ill and has a corresponding need for care.
  • In addition, according to the explanatory memorandum to the law, the entitlement should exist regardless of whether the work can also be performed in the home office or not.
• The compensation regulation for parents contained in Section 56 (1a) and (2) IfSG in the event of loss of earnings due to official closures of schools and childcare facilities to prevent the spread of COVID-19 (etc.) expired on September 23, 2022, as there were daycare and school closures in should no longer be available this winter.

What can employers do if there is a drop in orders and what simplifications are there with regard to short-time work?

Under certain conditions, the employer can order short-time work (ie a reduction in the agreed working hours). This is usually done either on the basis of an amendment agreement with the employees or the provisions of a collective agreement or a company agreement. If the relevant requirements are met, the Employment Agency pays part of the remuneration of the employees affected by the short-time work in the form of short-time work allowance.

In the course of the Covid-19 pandemic, numerous laws and statutory ordinances were enacted to facilitate access to short-time work benefits and to expand the benefits.

Most recently, the federal government made use of its authorization to issue statutory regulations under Section 421c (5) SGB III, which was last amended by the law on the extension of special regulations in connection with the COVID-19 pandemic for short-time work benefits and other benefits of March 25, 2022, and with the “Ordinance to extend the access facilitation for the receipt of short-time work benefits (KugZuV)” of June 22, 2022 extended the access facilitation for the receipt of short-time work benefits until September 30, 2022. With the ordinances amending the Kurarbeitergeldzugangsverordnung of September 15, 2022 and December 19, 2022, further extensions of the access facilitation took place until December 31, 2022 and June 30, 2023.

• It is therefore still sufficient if at least ten percent (instead of at least one third) of the employees of a company must be affected by the loss of working hours (§§ 421c Para. 4 S. 2, 96 Para. 1 S. 1 No. 4 SGB III) and
• Employees still do not have to build up any minus hours before short-time work benefits can be paid (§§ 421c Para. 4 S. 3, 96 Para. 4 S. 2 No. 3 SGB III).

The opening of the short-time allowance for temporary workers initially expired on June 30, 2022. According to § 11a AÜG old version, the federal government was authorized until September 30, 2022 to determine by ordinance without the consent of the Bundesrat that temporary workers are also entitled to receive short-time work benefits. With the ordinance on the opening of the short-time allowance for temporary workers of September 28, 2022, the payment of short-time allowance to temporary workers was again made possible for a limited period from October 1, 2022 to December 31, 2022. Pursuant to § 11a AÜG, which was (again) amended by the Act to Adapt the Ordinance Authorization for Short-Time Work Allowance and other regulations of October 19, 2022, the Federal Government is now authorized until June 30, 2023, to determine by ordinance without the consent of the Bundesrat that temporary workers are also entitled to receive short-time work benefits. The federal government has made use of this again by extending the short-time work allowance for temporary workers until June 30, 2023 with the ordinance on extended access to short-time work allowance of December 19, 2022.

This extension of the easier access to receive short-time work benefits is also intended to provide planning security in the event that the supply chain problems caused by the global effects of the COVID-19 pandemic should further aggravate as a result of the war of aggression in Ukraine.

However, they expired on June 30, 2022

• the exemption of mini-jobs from the short-time allowance, §§ 421c Abs. 1, 106 Abs. 3 SGB III;
• the increased benefit rates for longer short-time work, 70/77 percent of the net pay difference from the fourth month and to 80/87 percent of the net pay difference from the seventh month, §§ 421c Para. 2, 105 SGB III;
• the maximum entitlement period of 28 months, which can be extended under certain conditions, §§ 421c Para. 3, 104 Para. 1 Clause 1 SGB III;
• The lump-sum reimbursement of the social security contributions to be borne by the employer alone during short-time work, which was last planned according to § 3 of the “Ordinance on the reference period and extension of the facilitation of short-time work (KugverlV)” of November 30, 2021, is already due on November 31, 2021 March 2022. With the law to extend special regulations in connection with the COVID-19 pandemic for short-time work benefits and other benefits, the reimbursement of social security contributions was not extended.

Does the works council have co-determination rights?

Individual measures in connection with protection against COVID-19 hazards in the company can trigger information or participation rights of the works council.

For example, the works council has a broad right of co-determination as well as its own right of initiative when it comes to occupational health protection measures. In addition, the introduction of short-time work is also subject to a mandatory co-determination right for the works council. In addition, various measures can also affect other co-determination rights of the works council, for example in the area of ​​shift planning and working hours or with regard to internal reporting obligations. The introduction of a COVID-19 tracking app on company smartphones is also subject to co-determination (see below).

In emergencies, the information and co-determination rights of the works council can be suspended, for example with regard to protective measures to be taken immediately. In this respect, however, the hurdles are very high and will regularly not be met. Irrespective of this, the works council should be involved at an early stage in order to discuss the measures to be taken. In order to be able to react at short notice at any time, a special “Corona works agreement” is one way of doing it, which should be designed in such a way that the necessary measures can be taken as quickly and flexibly as possible while maintaining the information and co-determination rights of the works council. In addition to the works council, there may be other bodies such as

Interesting in this context: Meetings, including works meetings, can again be held virtually (§ 129 BetrVG). The regulation came into force again on September 17, 2022 and is limited until April 7, 2023.

What currently applies to telephone sick leave?

Since August 4th, 2022, the instrument of telephone sick leave, which is already known from the last waves, has been reactivated by the Federal Joint Committee (G-BA). The exception applies until March 31, 2023. In the case of mild respiratory illnesses, employees can now – after a telephone survey by the doctor treating them – take sick leave for up to seven calendar days (Section 8 of the Disability Directive). A one-off extension of sick leave for a further seven calendar days is possible by telephone.

For further information, please contact:

dr Andreas Dehio, Partner, Linklaters

andreas.dehio@linklaters.com