Member Article

Summertime is holiday time. Although the worldwide travel warning issued by the Federal Foreign Office for some European countries was lifted on 15 June 2020, currently (as of 17 July 2020, 5:30 p.m.) 130 countries are still classified as risk areas. These include Turkey and the USA, which are popular destinations for German holidaymakers. If an employee spends his vacation in a risk area during times of Corona or if a vacation area is declared a risk area during the vacation presence, questions of employment law arise upon return.

Risk areas are countries that are classified as such after joint analysis and decision by the Federal Foreign Office, the Federal Ministry of Health and the Federal Ministry of the Interior, for Construction and Homeland Security. The classification is based in particular on whether there have been more than 50 newly infected persons per 100,000 inhabitants in the last seven days in the respective state or region. The Robert Koch Institute (RKI) publishes online a list of countries that have been classified as risk areas.

QUARANTINE OBLIGATION

According to state regulations, persons who have stayed in risk areas are generally obliged to contact the responsible health authority immediately and without being asked upon their return to Germany, to go directly to domestic quarantine and to "isolate" themselves there for 14 days. Violations are subject to a fine. Exceptions are regularly made for certain professional groups as well as for travel for good reason. These should include, for example, travel due to shared custody or for the care of persons in need of protection. In addition, there is the possibility of exemption from the quarantine obligation by presenting a negative corona test, which must not be older than 48 hours on entry.

QUARANTINE AT EMPLOYER'S EXPENSE?

An immediate return to work is therefore out of the question for many employees after returning from holiday in a risk area. If, in addition, no work can be done in the home office, the question arises as to what effects the impossibility of work performance has on the employee's remuneration claims. Various constellations must be distinguished.

1. Domestic quarantine. If an employee is in domestic quarantine, he or she is not entitled to continued remuneration. Since it is impossible for him to perform his work, his entitlement to remuneration is regularly lost. This entitlement is also not upheld under § 616 of the German Civil Code (BGB). According to this provision, an employee does not lose his or her right to remuneration if he or she is prevented from performing work for a relatively insignificant period of time for a reason attributable to him or her without fault on his or her part. An employee who deliberately spends his holiday in a risk area will in any case be at fault for being prevented from working. Something different may apply if the destination is only qualified as a risk area after the start of the holiday.

It remains open whether the employee is entitled to compensation under Section 56 of the German Protection against Infection Act (IfSG). The IfSG provides for a claim for compensation in the case of an officially ordered quarantine for a period of six weeks in the amount of the loss of earnings and subsequently in the amount of the sick pay. The compensation claim is initially to be paid by the employer and will be reimbursed by the competent authority upon application. However, the employee's claim could be opposed if he or she has entered a risk area with knowledge of the quarantine obligation and the quarantine order is not - as usual - based on an individual case decision of the respective health authority. For this reason, it is therefore recommended that employers first consult with the competent authority about reimbursement before providing benefits to employees.

2. Disease in domestic quarantine. If an employee falls ill incapacitated for work after his or her vacation leave, he or she is generally entitled to continued payment of his or her wages under the conditions set out in Section 3 (1) of the Continuation of Remuneration Act (EFZG). However, the sickness-related incapacity to work must be the sole cause of the inability to work. If the employee is in quarantine, this is (also) a cause for the inability to work. In the absence of a so-called monocausality of the illness, the employee's claim to continued remuneration during the quarantine is therefore usually excluded.

PRACTICAL ADVICE

Employers should therefore take timely and preventive measures (if necessary in consultation with the works council) to deal with quarantine related absences. Overall, early, transparent and uniform communication will contribute to successful holiday return management. Employees should be made aware of the current entry regulations of the federal states and the corresponding information pages on risk areas. It should also be communicated that during quarantine there is no entitlement to continued payment of wages, but that a claim under the IfSG may be considered. Finally, it is advisable to sensitize employees to their obligations to provide information before they start their journey and to ask holiday returnees specific questions about their destination and symptoms of illness (cf. on the admissibility of data protection update no. 73). For the information of employees, a notice in the company or an announcement on the intranet is conceivable.