The Corona Warning App, commissioned by the German Federal Government, has been available for download since June 16, 2020. The availability of the app raises numerous employment-law issues. Can an employer make installation and use of the Corona Warning App in the company mandatory for reasons of corporate health management and operational health and safety? What role does the works council play? This update aims to provide an overview of the principal employment-law issues related to the use of the Corona Warning App at the place of work.

HOW THE CORONA WARNING APP WORKS

The Corona Warning App is a so-called tracing app. The objective of the app is to inform and warn its users as quickly as possible if they have come into contact with a person infected with Covid-19. The app enables the digital tracing of contact chains. The Corona Warning App can therefore help to identify and interrupt chains of infection within the company more quickly.

The app works as follows. The app uses Bluetooth to register contacts with other smartphones in the nearby area on which the app has also been installed. If the criteria in terms of distance and time, defined by the Robert Koch Institute as representing an increased likelihood of infection, are met, the respective apps exchange encrypted random codes (IDs). The random codes are stored locally on the smartphone for a limited period. If a user of the app tests positive for Covid-19, this person can use the app to voluntarily report the infection to the contact persons registered with the app. The user does not receive information on the identity of the contact person or concerning the time and place of the contact.

CAN EMPLOYERS MAKE USE OF THE CORONA WARNING APP IN THE COMPANY MANDATORY?

An employer's right to issue instructions applies only on the basis and within the scope of the employment relationship, meaning that instructions concerning the employee's personal life are fundamentally inadmissible. Therefore, employers cannot effectively oblige their employees to install and use the Corona Warning App on their private mobile telephone, in order to reduce the risk of infection within the company. Any such instructions by the employer would significantly encroach on the employee's general personal rights and property rights, and must therefore be classified as legally inadmissible.

Employers likewise cannot unilaterally oblige employees to install and use the Corona Warning App on their company telephone. At first glance there are many indications suggesting that use of the app on company mobile telephones can by all means be ordered unilaterally if the employee uses the mobile telephone exclusively for company purposes, i.e. during working hours, meaning that there is no encroachment on the employee's private sphere. From the perspective of data protection law, account must however be taken of the fact that the data processing by the Corona Warning App, and thus its use, are based on the principle of dual optionality. This means that use of the app is voluntary and each user reports his/her illness voluntarily (see above). The Corona Warning App uses the consent of the user (Art. 6 (1) lit a, Art. 9 (2) lit a GDPR) as the basis for the processing of personal data. The consent of the user is only effective if issued voluntarily. A unilateral employer directive ordering use of the app is inconsistent with the required voluntariness of consent, and thus with the principles of the GDPR.

Consequently, employers can only ask their employees to use the app in the interests of protecting the health of the general community. It must however be clear that this is only a recommendation and not a legally binding instruction.

INVOLVEMENT OF THE WORKS COUNCIL

If the company has a works council, the latter's co-determination rights must be observed. The works council has a right of co-determination pursuant to Section 87 (1) No. 1 BetrVG (Works Council Constitution Act) if the employer issues general rules of conduct for the company. In the context of the Corona Warning App, the issuing of a recommendation of use constitutes such a measure creating a right of co-determination pursuant to Section 87 (1) No. 1 BetrVG. The legal force of the measure is not decisive.

Use of the Corona Warning App can also be subject to a right of co-determination as defined in Section 87 (1) No. 6 (use of a technical surveillance device) and No. 7 BetrVG (operational health and safety).

The works council's right of co-determination can be respected for example through the conclusion of a works agreement.

The employer cannot prescribe the installation and mandatory use of the Corona Warning App on either private or company mobile telephones. Employers can however recommend use of the app by their employees without obligation.

PRACTICAL TIPS

If a company has a works council, the latter's co-determination rights must be respected, specifically those pursuant to Section 87 (1) No. 1, 6 and 7 BetrVG. It is advisable to conclude a works agreement with the works council concerning the management of possible cases of infection and risk in the company, and to agree on rules on voluntary use of the app within this context.