1. Employment law and short-time work – What employers need to know now
Employees who fall ill as a result of COVID-19 are normally entitled to continued remuneration in accordance with sec. 3 EFZG. If an employee is quarantined without being ill, the employer also pays for six weeks, but is reimbursed by the competent authority (sec. 56, sec. 5 of the IfSG). Important: The employer must apply for reimbursement within a period of three months.
If the failures are limited to a few days and affect only a few employees, the authority may regard this as temporary prevention in the sense of sec. 616 BGB. It remains the employer’s obligation to continue to pay wages if sec. 616 BGB is not excluded by individual contract. Recommendation: In the event of an official measure under the IfSG, you can agree an exclusion with the employees.
As a general rule, exceptions from the obligation to appear at the workplace only exist in the case of official quarantine measures and if there is a concrete risk of infection in the company.
Closure of schools and day-care centres, necessary childcare (up to the age of 12 years): Continued payment of remuneration according to sec. 616 BGB (unless this is contractually excluded) for a few days (or weeks, in dispute).
Arrangement of home office: The activity in the home office can be temporarily arranged unilaterally by the employer. The prerequisite is that the employee can work at home (technical equipment, guarantee of data protection, etc.) and that this is reasonable.
If the business is closed due to an official order because of the risk of infection (sec. 16 IfSG), the employer must continue to pay the wages, since the closure of a business falls within the general economic risk sphere of the company. However, a claim for reimbursement for the damage incurred can then be considered (sec. 56 IfSG).
In the event of closure or restriction of operations without an official order: The obligation to pay wages without a claim to reimbursement remains in force. Short-time work may be considered here. The Federal Ministry of Finance has decided on measures for ordering short-time work which make it easier for the employer to apply for short-time work. The new regulations come into force retroactively as of March 1, 2020.
