Domestic corona risk areas – how employers should handle employees’ travel

Due to the resurge of the pandemic in Germany and the steadily growing number of risk areas within the country, employers face numerous questions regarding the handling of their employees’ travel activities within Germany.

Following the meeting of the Federal Government and the Federal States on 14 October 2020, the Federal Government and Federal States were still unable to agree on a uniform national approach to dealing with travellers and people returning from so-called risk areas. For this reason, a very confusing patchwork of different requirements are remaining in place until at least the end of the autumn holidays in Bavaria on 6 November 2020.

We are clarifying below the most important labour law issues for employers regarding the inner-German risk areas:

1) When is an area a corona risk area?

Domestic risk areas are identified in the daily situation report of the Robert Koch Institute (RKI) on the 2019 coronavirus disease (so-called corona dashboard). Ultimately, however, each Federal State decides on its own responsibility in which districts, municipalities or parts of municipalities within Germany it considers there to be an increased risk of infection for its own population and which area within its own Federal State it officially identifies as a risk area. The decisive criterion, however, is the RKI’s 7-day incidence.

In contrast, the classification of foreign risk areas is carried out by the German Federal Ministry of Health, the German Foreign Office and the German Federal Ministry of the Interior, Building and Community and is published by the Robert Koch Institute.  

2) Can an employee refuse to take up work if his workplace is located in a domestic risk area?

If a place of work has been specifically agreed in the employment contract, the employee cannot refuse to take up work at the business simply because it is located in a domestic risk area. Rather, the employee is still obliged to carry out his work at the place agreed in the employment contract. An exception is made if important occupational health and safety reasons at the workplace exist for the individual employee. In this case, the employee could be entitled to refuse to work at the agreed workplace.

If the employment contract does not contain any provision on a specific place of work, the assignment to a place of work is made at the employer’s instructions. In this case, equally weighty reasons must exist for the employee not having to follow the employer's instructions. However, it is the employee who bears the risk of refusing to comply with these instructions (default of acceptance).

3) Can an employee who works in a domestic risk area refuse to work at his actual place of work and - to the extent his job permits - insist on working from a home office?

In principle, and unless otherwise agreed under individual or collective law, the employee has no claim to work from a home office. However, if the employee has legitimate doubts to as the health and hygiene safety at his work place, he will be able to refuse to perform his work at the workplace. Under no circumstances can the employee refuse to perform work at the workplace exclusively on grounds of the location’s classification as an inner-German risk area. 

4) Can the employer refuse an employee access to the business if the employee lives in a designated domestic risk area or if a certain incidence value has been exceeded in the last seven days at his place of residence?

Because of the employer’s domiciliary rights, it is fundamentally entitled to deny the employee access to the business. However, since the employer is in default of acceptance in this case, he is still obliged to pay the full wage. Where applicable, it is also possible to instruct the employee to work from a home office.

5) Can an employee be obliged to travel to risk areas for business purposes?

In the current situation, where an increasing number of inner-German areas are also being designated as risk areas and the RKI continues to recommend reducing travel for business purposes, employees who are contractually obliged to take business trips but do not wish to travel will probably only be obliged to take such business trips in urgent and exceptional cases which cannot be postponed. Here, it is irrelevant whether this is a domestic or foreign risk area.

Ultimately, however, the result will always depend on a case-by-case appraisal. All circumstances need to be taken into account here, such as the nature of the employee's work and, where appropriate, the means of travel. In any event, when ordering business trips, the employer's general duty to protect the employee and the principles of good personnel management must also be taken into consideration. In practice, the employer cannot force the employee to go on a business trip against his will. However, if the employee refuses the business trip without reason, the employer is entitled to take labour law sanctions. This is especially the case if the business trip is important and cannot be postponed, and if it is absolutely necessary for the employer.

Since all authorities are currently generally recommending reducing travel and avoiding social contacts in the business environment to the extent possible, with the aim of preventing further new infections, labour law sanctions in case of a refusal to travel on business trips will be hard to enforce.

6) Can the employer prohibit an employee from entering an area designated by the Robert Koch Institute as a risk area in his free time?

No, such a far-reaching intervention in the employee’s private life fundamentally no longer falls under the employer's right of direction and is therefore inadmissible. Here, protection of the employee's privacy is regularly given priority.

However, in individual cases exceptions are conceivable for absolute know-how carriers in companies. In this case, it is up to the employer to justify such a restriction and, in case of doubt, to also demonstrate that the company’s uninterrupted business operations depend on the know-how of a single person. In our view, such a restriction can only be represented in two cases: either in the sphere of management or in areas in which other employees are already absent from work. The criterion for this will be urgent operational reasons within the meaning of §  7 (3) German Federal Holidays Act [Bundesurlaubsgesetz, BUrlG].

7) Does an employee have to inform the employer if the employee’s spouse/life partner (living in the same household) works in a risk area (e.g. a married couple lives in Bonn, the husband works in Cologne, does the wife have to inform the employer)?

The employee is generally not obliged to inform the employer about the place of work of his spouse/partner (living in the same household). The mere fact that the spouse/partner works in a domestic or foreign risk area does not necessarily indicate an increased risk of infection.

However, an obligation to provide information on the activity of the spouse/partner can arise within the framework of the employee's secondary contractual duty of protection, if there is a concrete, increased risk of infection at the spouse/partner's business and this could also affect the business of the employer’s own employee.

8) Does an employee have to go into quarantine or present a negative test certificate after a business trip to a risk area before returning to the business?

Different regulations apply to persons returning from inner-German risk areas ("corona hotspots"), depending on the Federal State.

At present, the obligation to go into quarantine or to present a negative corona test is only applicable to entries from domestic risk areas in Mecklenburg-Western Pomerania and Rhineland-Palatinate. Furthermore, there is no quarantine obligation for Rhineland-Palatinate if a person living in Rhineland-Palatinate has spent less than 72 hours in a risk area.

Besides this, the other Federal States have essentially imposed an accommodation ban (see point 9).

9) Does the accommodation ban also apply to business trips?

Different regulations also apply to the accommodation of business travellers from risk areas, depending on the Federal State. Common to all accommodation bans in force in the Federal States is the fact that the accommodation ban can at least be lifted with a negative corona test - available in digital or paper form - which may be no older than 48 hours.

In some initial Federal States (Baden-Württemberg and Lower Saxony), the accommodation ban there has already been overturned by court decision; in Saxony, the accommodation ban has initially been suspended. It remains to be seen whether other Federal States will follow suit.

In addition, the following peculiarities apply to business trips, depending on the Federal State (status: 15 October 2020):

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