The employer‘s duty of care in the Coronavirus Pandemic

The constantly increasing spread of the corona virus has a noticeable impact on all areas of life. Employment life is particularly affected, which is why employers are currently faced with numerous questions.

The following article is intended to explain what measures employers have to take now to protect their employees from infection with the new virus and what reaction is required in the event of an infection among the employees.

The meaning of the employer’s duty of care in general

Due to the nature of the employment, employers have a so-called duty of care towards their employees. This means that employers are obliged to consider the legal interests of their employees and to protect them. Among others, the latter is regulated in more detail in the Labor Protection Act. Employers have to take the necessary measures to protect employees taking into account the circumstances that ensure the safety and health of employees at work and that are possible and reasonable for them.

The employer‘s obligations in the Corona pandemic

The spread of Covid-19, officially classified as a pandemic, requires special precautions to ensure the safety and health of employees.

According to Section 12 Subsection 1 of the Labor Protection Act and Section 81 Subsection 1 Sentence 2 of the Workers Participation and Representation Act, employers are obliged to inform their employees sufficiently and appropriately about safety as well as accident and health protection. In the current situation this means that employers must inform their employees about the illness, its fundamentals, its transmission and the dangers of infection in the employment relationship. If the risk changes, they may have to repeat or adapt this later if necessary.

Employees should also be informed in advance about the correct behavior in case of a possible or even confirmed infection.

The employee is also subject to a contractual duty of consideration, which obliges him/her to inform the employer about an increased risk of infection (e.g. by staying in a high-risk area). Employers should point this out.

In addition, Employers are also obliged to take further measures that are possible, reasonable and necessary for health protection. In any case, it is reasonable to establish company rules of conduct, to ensure workplace hygiene by regular cleaning and disinfectant, e.g. by providing soap and paper towels in restrooms. Depending on the type of business and the risks of infection, employers are also obliged to provide disinfectants, e.g. in companies with regular customer contact.

Finally, communication within the company, as well as with business partners or customers, should take place via e-mail, telephone calls or video conferences if possible.

The right reaction to a "corona case" in the company

If an employee in the company shows signs of infection or is actually sick, correct action must be taken to protect the other employees.

If an employee shows signs of the virus, employers can and should instruct the employee to consult a doctor or order a company medical examination.

Employers can also suspend the work duties of the employee in question if the interest in suspension outweighs the employee's interest in contractual employment. This is the case if there is a concrete suspicion of an infection with the corona virus, e.g. if symptoms of illness occur or if the employee has previously been in a high-risk area. It should be noted, however, that the employee's claim to remuneration still remains.

If it turns out that an employee is indeed infected with Covid-19, employers are obliged to inform the other employees of this. In individual cases, it might be necessary to inform them of the name of the infected person. Although this is health data worthy of protection within the meaning of Article 9 Subsection 1 of the Basic Data Protection Regulation, processing of this data may be justified in exceptional cases in accordance with Article 6 Subsection 1 letters b), d) and f) of the Basic Data Protection Regulation in order to fulfil the duty of care under the employment contract. This is particularly the case if colleagues have been in contact with the sick person and therefore need to be informed. Employers should request the sick person to provide information on this. They should also consider discussing working from home with those concerned or to suspend their work duties. This is particularly the case if this includes people who belong to the risk groups identified by the Robert Koch Institute. Finally, those areas of the workplaces in which the sick person was present should be thoroughly cleaned and disinfected. Furthermore, exchange with the public health department can be useful.

What to keep in mind concerning business trips now?

Some employment contracts provide for business trips abroad. Employers can order business trips within the scope of their right to issue instructions under Section 106 of the Industrial Code at their own discretion. Such an order is unreasonable and unacceptable for the employee if it would involve considerable danger to life and health. This is currently the case for business trips to areas for which the Federal Ministry of Foreign Affairs has issued a travel warning. However, the unreasonableness can also result from personal circumstances of the employee, for example if he or she belongs to a risk group. The employee may then refuse the business trip without having to fear sanctions under labor law. Due to the cancellation of most flights abroad and the closure of the borders, this question does not seem to arise at the present time.

If an employee is currently already deployed abroad in a risk area for his German employer, the employer is obliged, within the framework of their duty of care, to keep themselves constantly informed about the situation in the specific country and, if necessary, to take appropriate measures, e.g. to instruct the employee to work remotely from home or even to arrange for a repatriation.

Conclusion

The spread of the corona virus currently requires special protective measures as part of the employer's duty of care. In summary, we therefore recommend employers:

• inform your employees about the disease, its risk of infection, current changes and the behavior in case of (possible) infection
• establish rules of conduct
• pay particular attention to the compliance with hygiene regulations
• reduce the risk of infection, if necessary, through home office, time off, holidays and communication via e-mail, telephone or video conferences
• instruct your employee to consult a doctor if there are signs of infection
• inform the other employees, especially contact persons, if an employee has become infected with the virus
• avoid business trips
• inform yourself about the situation in the countries in which your employees are deployed for you and take appropriate measures if necessary

Bei allen rechtlichen Fragen rund um das Thema Corona-Virus helfen wir Ihnen gerne!

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