Continued payment of wage and the remuneration risk in times of corona

Persons who are demonstrably infected with coronavirus or suspected of being ill or infected may be subject to an officially ordered quarantine pursuant to §§ 28 (1) sentence 1, 30 (1) sentence 2 German Infection Protection Act [Infektionsschutzgesetz, IfSG] (so-called isolation) or a work ban pursuant to § 31 IfSG.

In business practice, due to the high workload of the health authorities, employees are often already written off sick or released from their employment duties before such an official order is issued, in order to minimise the risk of contagion due to the suspected infection.

But in which cases does the employer owe the continued payment of the employee’s wage? And under what conditions does the employee have compensation claims under the German Infection Protection Act (IfSG)? On the basis of typical case constellations, which include the topic of returning travellers, we have set out the answers to these questions below.

1. Proven infection of the employee with SARS-CoV-2

In the event that the employee has tested positive for coronavirus, a distinction first needs to be made between an asymptomatic and a symptomatic infection.

(a) Asymptomatic infection with SARS-CoV-2

• According to the instructions and explanations of the German National Association of Statutory Health Insurance Physicians [Kassenärztliche Bundesvereinigung, KBV] on sick leave in connection with coronavirus, a person who has tested positive but shows no symptoms may not be issued with a certificate of incapacity for work by the doctor treating him.

• On this basis, an asymptomatically ill employee cannot meet the requirements of § 5 of the German Act on Continued Remuneration in the Event of Illness [Entgeltfortzahlungsgesetz, EFZG], which means that a claim to the continued payment of wages in the event of illness is excluded under § 3 EFZG.

• Instead, the competent health authority will order an official period of isolation. If the employee is able to continue to perform his work from a home office during the isolation, the employer also continues to owe his wages. There is no loss of earnings and the employee is not entitled to compensation under the IfSG. If, on the other hand, the employee's work is not capable of being executed from the home office, he is unable to perform the activity owed under the employment contract. In this case the following applies: "no work, no pay", i.e. the employer does not owe any wage payment. Instead, the asymptomatically ill employee is entitled to compensation, which is to be disbursed by the employer pursuant to § 56 IfSG.

• In these cases, however, it is not uncommon in practice for a certificate of incapacity to work to already have been issued before the positive test result becomes available or before the competent authority orders quarantine or a work ban. In this case, the employer would be obliged to continue to pay wages in accordance with § 3 EFZG on the basis of the certificate of incapacity for work issued, despite the fact that the employee is not incapacitated for work although he is infected with coronavirus, due to the lack of symptoms. For constellations such as these, the relationship between the obligation to continue to pay wages in accordance with § 3 EFZG and the obligation to pay compensation in accordance with § 56 IfSG has not yet been clarified.

• However, since the criterion for compensation under the IfSG is a "loss of earnings", which is not the case with the continued payment of wages under § 3 EFZG, the compensation claim is partially considered subsidiary under the IfSG. Which "pot" is ultimately dipped into thus depends solely on the timing of the official isolation order. Thus, if the isolation is ordered before the visit to the doctor, the employee would be entitled to compensation under the IfSG. If, on the other hand, the official order is issued at the same time or after the certificate of incapacity for work has been issued, the claim to the continued payment of wages would take precedence according to § 3 EFZG. As a precautionary measure, we would recommend applying for compensation under § 56 IfSG within the application period until this conflict of claims has been finally clarified.

(b) Symptomatic infection

• If the employee who has later tested positive shows symptoms of a SARS-CoV-2 infection, the question arises again whether the employee is able to work from home until the infection has been clarified (keyword: home-office suitability of the owed activity) or whether the symptoms are already so severe that he is unfit for work and has been issued a certificate of incapacity for work by the doctor treating him.

• If the employee can continue to work from home until the positive test result, he will continue to receive his wage without change. Lacking a loss of earnings, a claim for compensation under § 56 IfSG is excluded.

• Upon presentation of a certificate of incapacity for work, the employer owes the continued payment of the employee’s wage in accordance with § 3 EFZG.

• If the public health authority orders the symptomatic employee to be quarantined or banned from work, the claim for compensation under § 56 IfSG may conflict with the claim to the continued payment of wage in the event of illness. Insofar, we refer to our comments under 1 (a).

2. Release of the employee from employment duties without a confirmed SARS-CoV-2 infection and without an official quarantine order / work ban

• Also of relevance is the question of the fate of the remuneration claim of the employee who is released from work by his employer as a precaution - for example, because he had contact with a person who is demonstrably infected - without himself being demonstrably infected or having been officially ordered to go into quarantine.

• The employee's claim to employment under §§ 611a and 613 German Civil Code [Bürgerliches Gesetzbuch, BGB] in conjunction with § 242 BGB and Article 1, 2 (1) German Constitution [Grundgesetz, GG] does not apply if the employer has an overriding interest that merits protection. This exists, for example, if the employer's duty of care requires that it protect its employees from health hazards. This is the case when there is a reasonable suspicion of an infection with coronavirus.

• If, for reasons of prevention, the employer decides, without a corresponding official order pursuant to §§ 29 et seq. IfSG, to release the employee suspected of being infected from his employment duties, it remains obliged to continue to pay the employee’s remuneration during the release.

3. Officially ordered quarantine or work ban

(a) The employee is able to carry out his work from the home office.

• If the employee ordered to go into quarantine shows no symptoms of an infection with SARS-CoV-2, it is assumed that he is fit for work.

• If it is also possible for the employee to carry out his work outside of the company from his home office during the quarantine, because the nature of his work does not prevent this and either all the necessary work equipment is available or can be made available without contact, the employee is also entitled to his contractual remuneration.

(b) ​​​​​The employee is unable to carry out his work from the home office.

If the employment activity cannot be carried out in the home office, the performance of work is regularly rendered impossible due to its character as a fixed obligation [“Fixschuld”] according to § 275 (1) BGB, which means that the employee's claim to remuneration also fundamentally lapses according to § 326 (1) BGB, unless it is upheld by any claims to the continued payment of wages. Claims under § 616 BGB and § 56 (1) sentence 2 IfSG come into consideration here.

(i) Claim under § 616 BGB

• In the opinion of the Federal Court of Justice [Bundesgerichtshof, BGH], the claim under § 616 BGB takes precedence over the claim to compensation under § 56 (1) IfSG, which means that the employer cannot apply for compensation under the IfSG as long as § 616 BGB applies.

• § 616 BGB can be contracted out; the respective employment or collective bargaining agreement and any possible shop agreements should always be inspected to this effect.

• Whether a measure taken on the basis of the IfSG can be considered a subjective personal impediment to performance within the meaning of § 616 BGB on grounds of the suspected risk established in the person of the employee is viewed differently. In the past, this was affirmed by the BGH in connection with the German Federal Contagious Diseases Act [Bundes-Seuchengesetz, BSeuchG], which means that it can be assumed that the personal impediment to performance will also be affirmed for the risk established in a person suspected of having corona. § 616 BGB should not apply, on the other hand, if the employer's business as a whole is closed down due to an official order. In this case, namely, there is no individual impediment to performance within the meaning of § 616 BGB, rather, in our view, an objective impediment to performance, which means that the claim under § 616 BGB is excluded.

• If § 616 BGB applies in an individual case, it has not yet been conclusively clarified whether the quarantine, which is usually ordered for 14 days, still represents a relatively trivial period of time as presupposed by § 616 BGB. A period of five days, as advocated in earlier case law, seems too short in the current pandemic situation. In consulting practice, a period of up to ten days is currently regarded as "relatively trivial period of time" within the meaning of § 616 BGB.

• The form to be filled in by the employer for compensation according to § 56 IfSG contains a point where the employer must state whether the employee is entitled to the continued payment of his wages according to § 616 BGB. According to the authorities’ understanding, this fundamentally ought to be the case, apart from in cases where it has been validly contracted out. In practice, therefore, it is assumed, at least on the part of the authorities, that the employee has a claim to the continued payment of wages under § 616 BGB and that the employer's application for reimbursement of the compensation payment under § 56 IfSG will likely be rejected in whole or in part.

(ii) Entitlement to compensation pursuant to § 56 (1) sentence 1 IfSG

• If the employee does not have a priority claim to the continued payment of wages, in the event of an isolation order or work ban he fundamentally has a claim to compensation according to § 56 (1) sentence 2 IfSG.

• Pursuant to § 56 (2) sentence 1 IfSG, this compensation is calculated on the basis of the loss of earnings, which in turn comprises the net employment remuneration pursuant to § 56, (3) sentence 1 IfSG.

• Compensation in the amount of the loss of earnings is granted in accordance with § 56 (2) sentence 2 IfSG for the first six weeks from the time of fulfilment of the conditions for the entitlement to compensation; from the seventh week onwards, the claim to compensation is only in the amount of the sickness benefit pursuant to § 47 (1) German Social Code Book V [Sozialgesetzbuch V, SGB V].

• Pursuant to § 56 (5) IfSG, the employer must pay the compensation to the employee for a maximum of six weeks and must apply to the authorities for a corresponding refund within 12 months.

• From the seventh week onwards, the claim to compensation shall be settled directly by the competent authority of the federal state liable for the compensation.

(iii) What about employees returning from a risk area?

(I) ​​Travel to an area already classified as a risk area at the time of starting the journey:

• Both the claim to the continued payment of wages under § 616 BGB and the claim to compensation under § 56 IfSG require that the person concerned is not at fault.

• Pursuant to § 56 (1) sentence 3 IfSG, the claim to compensation is not applicable if the person concerned could have avoided a work ban or isolation - i.e. quarantine. This covers cases in which the person concerned can be accused of "fault against himself".

• The claim to continued payment under § 616 BGB likewise presupposes that the employee is not at fault. Such fault can be assumed in case of a gross violation of the conduct to be expected from a reasonable person, the consequences of which would be unfair to pass on to the employer.en das von einem verständigen Menschen zu erwartende Verhalten, dessen Folge auf den Arbeitgeber abzuwälzen unbillig wäre, anzunehmen ist.

• Unless there was a valid reason for travelling, in our opinion travel to risk areas which were already classified as such before the start of the journey constitutes such fault, with the result that the employee has a claim neither to the continued payment of wages under § 616 BGB nor to compensation under § 56 (1) sentence 2 IfSG. The employer also does not owe a wage if the employee cannot perform the work he owes due to the quarantine order.

(II) Travel to an area not previously classified as a risk area

• Employees travelling to an area which was not classified as a risk area at the time of starting their journey and which is only classified as such during their stay should not be accused of fault against themselves or of a gross violation of the conducted to be expected of a reasonable person.

• Claims under § 616 BGB and § 56 (1) sentence 2 IfSG therefore come into consideration here.

• If the employee is entitled to compensation under § 56 (1) sentence 2 IfSG, the employer can apply to the competent authority for reimbursement.

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