31 Mar Legal Effects on the Coronavirus – Part I
Labor law issues also arise in connection with the virus. Basically, and in general in advance:
The obligation of the employee to perform work is not affected by the occurrence of the alleged „new viral disease“. This means that the work is generally still owed in full, the „virus“ is no reason for non-performance. The employee also has no right of retention with regard to his work performance due to fear of infection on the way to work or at the workplace itself.
If the employee has been shown to be unable to work as a result of the infection and is therefore unable to perform his work (caution: the infection must be proven, the fear of infection is not significant under any circumstances), then he has acc. § 3 EFZG entitlement to continued payment of the remuneration for a period of 6 weeks. After this period, a statutory health insurer is generally entitled to sickness benefit. Entitlement to continued payment may lapse if the employee culpably caused his incapacity to work.
Such a case could possibly exist if the employee would travel to a risk area despite an existing travel warning from the Federal Foreign Office because of an increased risk of infection. In principle, culpable behavior has no effect on the right to sickness benefit.
The employee is generally not entitled to paid time off if the daycare center / school for children requiring care is closed. A right to continued payment according to Section 616 of the German Civil Code (BGB) is ruled out if it is clear from the outset that the reason for the impediment exists for a longer period. That should be the case with the „corona-related“ closure of the daycare center or school. It is therefore primarily a search for a solution with the employer that is based on the goodwill of the employer, to which the employee is not entitled. (e.g. home office, use of vacation or working time accounts, flexible working hours).
If the employer is unable to continue operations due to the illness of numerous employees or due to „corona-related“ delivery bottlenecks, the employee retains his right to continued payment of wages. The employer bears the so-called „operational risk”.
If an employee is proven to be infected but still able to work because the disease shows no or only mild symptoms, then the employer can order the employee to stay away from the workplace to prevent contagion of the colleagues. The Federal Court of Justice is of the opinion that in such a case there may be a temporary reason for prevention, which is in the person of the employee, which obliges the employer to continue paying wages despite the absence of the obligation to perform work (Section 616 BGB).
The specific duration of continued payment depends on the circumstances of the individual case (see BGH, judgment of November 30, 1978, III ZR 43/77 – after this decision for a maximum of 6 weeks). If, on the other hand, the competent authority issues a ban on employment („quarantine“) to the infected employee, the employee is already § 56 Para. 1 IfSG (= Infection Protection Act) to a compensation payment, according to. Section 56 (3) IfSG in the amount of the net wages. After 6 weeks, the employee is then entitled to sickness benefit. The employer initially pays the compensation; the latter has a claim for reimbursement from the authority.
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