COVID-19: FAQ on the employment relationship

Should and must the employer take protective measures?

Within the scope of his duty of care, the employer is obliged to take all measures necessary to safeguard the employees’ health. To the extent possible, the employer must ensure that the coronavirus is not spread at the workplace. Firstly, protective measures ordered by authorities must be strictly adhered to. It should be noted, however, that in addition to protective measures ordered, authorities often only make recommendations it remains the employer’s task to analyze the situation on a company level and independently take all necessary and reasonable measures. In addition to the obvious hygiene regulations, such measures include instructing employees to stay away from work if there is a well-founded suspicion of an infection.

Does the employer have to pay the employee’s salary in case of absence from work for fear of infection with the coronavirus?

In principle, the following rule applies: If the employee stays away from work without justifiable reason, he loses his entitlement to salary. If the employee becomes contracted with the coronavirus, he may (and must) stay away from work and obviously has an excusable reason for doing so. In this case, the employer's obligation for continued wages payment will apply for a limited period of time, or in most cases, the extended benefits of the employer’s daily sickness allowance insurance. If the employee merely suspects that he/she has become infected with the coronavirus, he/she should contact a doctor and inform the employer accordingly, as the employer is obliged by his duty of care to take all reasonable precautionary measures against a (threatening) spread at the workplace. A possible solution would be for the employer arrange home office for affected employees. It should also be noted that an infection with the coronavirus - depending on the symptoms - is not necessarily to be equated with the employee's inability to work.

If the employee stays away from work for fear of infection with the virus, there is usually no entitlement to salary. However, if the absence from work is otherwise justified, e.g. if the employer or authorities order the (individual) employee to stay away from work, the wage entitlement remains intact. Other objective reasons, such as the lack of necessary protective measures taken at the workplace by the employer, can also justify an employee's refusal to appear for work under certain circumstances (e.g. if there is an increased risk of infection by a contracted employee at the workplace).

What measures can be taken by the employer if the employee is absent without cause?

If the employer considers the employee's absence from the workplace to be unjustified (due to the circumstances), the employee can be given a formal warning, combined with further disciplinary measures in the event of continued refusal to perform work (e.g. reduction of salary and claims for damages). However, a dismissal with immediate effect by the employer does not seem justified (under the circumstances of the public being faced with a spread of an unknown virus). Even if the employer decided to give (ordinary) notice of termination following the absence of the employee, there is a certain risk that the employer will face legitimate claims as a result of wrongful termination. In both cases, the employer could face a penalty payment of up to six months' salary of the employee concerned. It should be noted here that the assessment of the general situation - until complete cessation of everyday work is ordered by authorities - will always, to a significant degree, remain a question of interpretation, which - naturally - is likely to be answered differently by employer and employee. Therefore, an appeal to the self-discipline of both employee and employer seems quite appropriate.

Is the employee entitled to salary if he/she is prevented from work by traffic restrictions and/or official closures of entire public areas?

If the employee is unable to reach work (in time) due to restrictions of public transport or due to official closures of public areas by authorities, his/her absence or delay is to be deemed excusable, however, no salary is owed by the employer. In particular, the same rule applies, if the employee is unable to return from holiday on time due to air traffic restrictions.

Our team is at your disposal to answer any questions you may have on this subject in more detail.