The authorities in Germany have taken very extensive measures to contain the pandemic caused by SARS-CoV2 in Germany and to slow its spread. The development is dynamic. Many people are asking themselves: Are they allowed to do this and if so, to do it so comprehensively? What about our employees? How do I protect ourselves? Who will compensate for the losses that occur?
Be sure to pay attention to the region for which an injunction applies!
Initially, the responsibility lies with different authorities, depending on the federal state. In some cases, the ministries have issued general decrees. This also explains the different procedures – for example, with regard to the closure of schools, day care centres (KiTas) and kindergartens. However, in order to maintain public services, certain establishments are usually exempted from the closures. This applies particularly to health care. Emergency groups have therefore been formed in schools and kindergartens to maintain these facilities. These do not take in all children. Many practices have long since been affected by the fact that employees themselves have fallen ill or are in quarantine or have to look after their children at home.
What happens to the staff?
This is also accompanied by questions of employment law: for example, regarding continued remuneration, reduction of overtime and vacation, and in some cases short-time work and dismissals. The answers depend on various factors. With regard to continued remuneration, for example, a distinction must be made between whether the employee is sick himself or herself, is in quarantine due to an official order, or is caring for a sick or quarantined relative. In this case, a distinction must be made between apportionable continued remuneration under the EFZG and compensation under the IfSG. Please note: In the case of compensation under the IfSG, an application for compensation must be submitted. The situation is different for caring staff.
The reduction of overtime depends on the contractual agreements. Leave cannot be forced overnight, but can be agreed if necessary. Dismissals are to be avoided. However, initial inquiries already concern short-time work and dismissals.
Employees sometimes ask themselves the question whether they can, may or must go to work at all. Some want to or should work in the home office. And here, too, there is the question of supervision of children who stay at home and are not allowed to go to school or daycare. Are there claims to continued payment of wages, who must be informed and where do the applications go? Is the employee allowed to order overtime free, what about holidays? Do I have to take holiday? Above all, dismissals could also be pending.
Employers and employees are partly equally concerned with these questions of labour law. A general answer is not possible here either. In the case of employees, the contractual regulations, the official order issued and the circumstances of the individual case must also be examined. Some questions are answered, for example, on the information pages of ARAG.
How do I protect personnel?
Employers must observe occupational health and safety regulations. They should therefore ensure that the necessary protective measures are in place – also with regard to infection with Covid-19 as well as other pathogens. If necessary, the visit should be reduced. In the case of health facilities, this may include appropriate personal protective equipment, including mouthguards. At present, it is problematic if this is not in stock and cannot be procured; this is also an individual case decision which we cannot give a general answer to here.
The question of the right protective equipment arises, especially in the rescue service. This must also be made available to part-time and volunteer personnel. The rescue service staff should be trained in the correct handling of such equipment. This also applies to patients.
Please do not stigmatize sick personnel! However, clarify any suspicious cases.
Think about data protection.
Patients should inform the emergency services such as doctors and clinics as well as control centres – at best repeatedly – about their own suspicious cases. They should neither be ashamed nor afraid of protective clothing, as it prevents the staff from being infected.
Home office as a solution?
As far as home offices are concerned, questions of data protection and data security are sometimes virulent. Despite the effects of the Corona, it is initially not possible to dispense with the associated duties. Please pay particular attention to data protection; not that Corona is joined by Emotet. It is therefore essential that you work through the Home Office checklist.
Restrictions of public life
The school closures were followed by further, sometimes massive, restrictions in public life, including closures of retail outlets, and bans on visiting and entering the school. The measures are not yet final. Whether the respective measures are permissible and necessary in individual cases according to the Infection Protection Act (IfSG) will probably have to be clarified in the follow-up. It will also have to be clarified whether claims for compensation exist in individual cases according to the IfSG. This cannot be answered in a general way, as the individual case must always be examined. Once again: Make sure to pay attention to the region for which an injunction applies!
Rent payment for quarantine
What do you do if you cannot use your premises due to an official order? In Austria there is a clear regulation in § 1104 ABGB. In Germany, there is no such clear paragraph, but here, too, the rent may not have to be paid. Because you cannot use the rented rooms either. The clarification, however, requires a close look at the rental agreement.
Securing liquidity and compensation
The Federal Government and the individual federal states have promised state support. Various forms of state aid have been announced, from immediate loans to support payments. The details are not yet fully known. Here too, as with the pandemic as a whole, the development is dynamic. Insolvency applications are not ruled out for limited liability companies.
Whether compensation under the Infection Protection Act is possible must also be examined in each individual case.
Cooperation partners suddenly refuse to make use of the service and refuse payment. Some companies experience delivery difficulties because supply chains – including those from abroad – are interrupted. Some invoke force majeure. In some cases, operation is already prohibited. There is indeed an extremely dynamic development, which must be counteracted in the short term.
Schools and childcare facilities
In the case of schools and day-care facilities for children, there is also the additional question of how they should weigh up the emergency care of parents in areas of critical infrastructure or how the use of digital media should be implemented. But the question of reimbursement of subsidies also arises.
The questions are not exhaustive. In most cases, decisions must also be made on a case-by-case basis:
- what effects do official orders have on further contracts?
how do we deal with cancellations of appointments, for example in the case of cancelled consultation hours and operations?
what effect do the measures have on the financing of schools and day care facilities?
how do special regulations on the certificate of incapacity to work apply?
Lastly, authorities sometimes need advice on how to deal with the Infection Protection Act and any claims for compensation.
Although there is a great deal of legal speculation in this regard, this does not necessarily apply to the individual case in question or has not yet been conclusively assessed. In any case, the questions are likely to give rise to numerous legal questions. Prepare yourself for this and avoid short-circuiting. In short, the development is dynamic. At this point I will add further links that may provide legal support.
At the same time, we ourselves are trying to keep our business running. At the moment we can be reached by phone during normal office hours. In fact, employees also work in our home office.