Employment Law05.08.2021 Newsletter

Returning from holiday in times of the pandemic - what employers need to know

The holiday season is in full swing and in the first federal states the summer school holidays are already drawing to a close. Many have ventured abroad for the first time in a year and a half - getting out and about at last!" However, in view of rising infection rates, quarantine could become necessary - perhaps taking holidaymakers by surprise. We provide an overview of things to be considered when employees return from holiday.

Notification of destinations

The prevailing view is that employers are only entitled to ask their employees whether they have returned from a trip to a high-risk or virus-variant area. The employer has a legitimate interest in knowing whether employees have travelled to a high-risk or virus-variant area so that it can protect its remaining employees. Pursuant to Section 26 (1) sentence 1 of the German Federal Data Protection Act [Bundesdatenschutzgesetz - BDSG], this question is deemed necessary for the performance of the employment relationship and thus permissible, especially in light of the employer's duty to protect the rest of its workforce (Section 618 of the German Civil Code [Bürgerliches Gesetzbuch - BGB]). Accordingly it is assumed that, when returning to work after a holiday in a high-risk or virus-variant area, employees have a notification or disclosure obligation that arises as a duty of consideration from Section 241 (2) BGB. The employer's question about the specific location of the holiday, on the other hand, is generally considered inadmissible. It is also not acceptable for an employer to prohibit certain trips, since the free choice of travel destination is protected by the Constitution as an exercise of general personal rights.

Remuneration and quarantine

If employees actually fall ill with COVID-19, they are entitled to continued payment of their remuneration in accordance with the German Act on the Continued Payment of Remuneration in Case of Illness [Entgeltfortzahlungsgesetz - EntgFG]. Although this claim is excluded if the incapacity for work due to illness is self-inflicted, it seems highly questionable whether this threshold is already exceeded by merely travelling to a risk area, especially since it often is not possible to trace the chain of infection.

Legally, it becomes more difficult if the quarantine is of a purely preventive nature and (temporary) work in a home office is not possible.

High-incidence area or virus-variant area? How the area is classified decides how long the quarantine has to last and if and when employees can "test themselves out of quarantine". The dynamics of the pandemic require constant regulatory adjustments. The last amendment to the Corona Entry Ordinance [Corona-Einreiseverordnung] came into effect as recently as 28 July 2021. Employees are therefore unable to plan with certainty.

Nevertheless, the decisive issue when assessing claims to the continued payment of remuneration will be the extent to which employees were able to foresee prior to departure that they would be subject to a quarantine obligation.

If the employee's travel destination only becomes a high-risk or virus-variant area during the course of the holiday, a claim to the continued payment of wages pursuant to Section 616 BGB can come into consideration. However, this is only the case if the quarantine is for a relatively insignificant amount of time. What is deemed "insignificant" depends on the individual case. The line is often drawn at five days. However, since Section 616 BGB can be waived in the employment contract, this claim is often already ruled out for this reason.

Moreover, Section 616 BGB also provides for an exclusion of claims if the work hindrance is self-inflicted. If the classification of the holiday destination as a high-risk or virus-variant area and the associated quarantine obligation were already known beforehand, a claim to the payment of wages will be ruled out for this reason.

In addition to the claim under Section 616 BGB, Section 56 of the German Infection Protection Act [Infektionsschutzgesetz - IfSG] provides for a compensation claim of employees for their loss of earnings, which is disbursed via the employer. However, the claim is excluded pursuant to Section 56 (1) sentence 3 IfSG if the journey and the associated quarantine obligation could have been avoided, i.e. there were no compelling and urgent reasons for the journey, and the destination was already classified as a high-risk or virus-variant area when the journey began.

The claim to compensation pursuant to Section 56 (1) sentence 3 IfSG is also excluded if the quarantine could have been avoided by getting a publicly recommended vaccination. With the continuous improvement of the vaccination supply, the scope of application of Section 56 IfSG will thus shrink even further.

Care of children in quarantine

While many adults have already had the opportunity to be vaccinated, children currently have limited access to vaccinations against COVID-19 and parents may be unable to work if they must care for their quarantined child. The claim under Section 616 BGB, to the extent not already waived in any case in the employment contract, will also fail here on grounds of fault on the part of the employee if the quarantine obligation was known before commencing the trip. However, Section 56 (1a) IfSG also provides for a claim to compensation in the constellation where parents are required to provide care because their child under the age of twelve cannot attend school due to a quarantine. If the school or kindergarten is closed for the holidays in any event, this claim is excluded.

Recuperative quarantine?

The Bonn Labour Court recently had to address the effects of a quarantine obligation during recuperative holiday (judgement of 7 July 2021, 2 Ca 504/21). If employees fall ill during their holiday, days of holiday generally have to be granted anew for those days of illness (Section 9 German Federal Holiday Act [Bundesurlaubsgesetz - BUrlG]). In this case, the court had to decide whether this also applies to days in quarantine in connection with a corona infection. The employee had not submitted a certificate of incapacity for work, she could only prove the official order of quarantine. Since Section 9 BUrlG requires proven incapacity for work, the court denied the employee’s claim to be granted holiday anew. It also did not see any scope for an analogous application.

Delayed return

If an employee does not return to work in time after the holiday because he cannot leave in time due to infection control measures at the holiday location or because flight connections to the country in question are suspended, he bears the travel risk. However, the employer may be obliged under Section 616 BGB to continue to pay the remuneration for a relatively short time period if the travel restriction was not foreseeable for the employee. If, however, the employee has travelled to a risk area in full knowledge of the situation, a claim to remuneration under Section 616 BGB does not exist. The same applies if Section 616 BGB has been waived.

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Anja Dombrowsky

Anja Dombrowsky

PartnerAttorney

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 184
M +49 151 1164 8694

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