The coronavirus is all over the news. Ever since – if not before - the virus itself arrived in Germany, people here have been pondering questions of prevention and risk minimization. Even if the pathogen is supposed to be no more dangerous than conventional influenza concern among the German population is widespread. Given that the virus is transmitted from person to person, caution is recommended in situations where many people come together. This means of course that there are risks both in the workplace and for business trips.
Dr. Kerstin Neighbour runs the employment law practice at global law firm Hogan Lovells International LLC. Here she explains how employers in Germany need to deal with the risks currently posed by the virus officially termed covid-19 and known more widely as the “coronavirus”.
What are an employer's general duties and obligations with regard to health protection?
Employers have a duty of care towards their employees. As such they must inform their employees about any existing health risks and provide appropriate preventive measures and rules of behaviour. Where specific health risks are known, the employer may also be obliged to provide certain protective clothing (e.g. face masks). The same applies to the provision of disinfectants, for example in toilet facilities or at the entrances to company premises. However this does not mean that every company must now take extensive measures. The scope of these obligations depends on the type of business (including the size of the business and the extent of direct customer contact). Nevertheless, should an employer fail to fulfil these obligations where appropriate, the company may leave itself open to a claim for damages by its employees.
Are employers still permitted to send their staff on business to China?
The German Foreign Office currently advises against "unnecessary travel to the rest of the territory of the People's Republic of China with the exception of the Special Administrative Areas of Hong Kong and Macao until further notice". In principle, however, instructing employees to make business trips to China is still possible. Where an employee is contractually obliged to undertake business trips, the employer may order a trip to China within the framework of the employer’s right to manage. But the employer is required to exercise this right with reasonable discretion by taking into account the wider interests of the employee concerned. In this context ordering an employee to make a business trip to an area currently subject to a German Foreign Office travel warning does not show sufficient discretion. In such cases the employee may reasonably refuse to make the business trip. Such a travel warning is currently in place for the Chinese province of Hubei as well as for the city of Wuhan, believed to be the source of the current epidemic. Employers should monitor developments on a daily basis. As above, the personal circumstances of the employee must of course be taken into account. If, for example, the employee belongs to a group believed to have a higher than average risk of infection, for example because of a previous illness, insisting on a business trip may be seen as unreasonable.
Can employers oblige employees to work from home?
Employers may not instruct employees to work from home as this is not covered by the employer's general right of instruction (right to manage). In fact it requires a prior agreement between the employer and the employee.
Is an employee allowed to refuse to come to work because he fears contagion in the company or while travelling?
No. Provided he is himself healthy the employee cannot refuse work solely on the basis of his fear of an increased risk of contagion. Should the employee nevertheless stay away from work, the employer can under German labour law take measures and issue either a formal warning or dismissal depending on the particular situation. The employee can refuse work only where it is clearly unreasonable for anyone to perform the work. But this point is unlikely to be reached so long as the employer fulfils their duty of care by putting in place the necessary health protection measures in good time.
What should employers do if an employee is believed to pose a health risk to other workers?
Where there is good reason to believe that an employee poses a risk to the health of other workers, for example because they have been in a risk area, the employer may unilaterally exempt that employee from their duties and/or deny them access to the company premises. In such cases the employee retains their right to remuneration.
How should the employer behave where infection with the virus covid-19 (“the coronavirus”) is either strongly suspected or actually confirmed?
Where this is the case the employer must work closely with the responsible health authority. Here the employer has an increased duty of protection and care towards the rest of the workforce. The employer is allowed to send home employees presenting symptoms of an infectious disease in order to protect the remaining employees. This applies also to any other disease, including influenza.
Recommendations for employers:
- Assess, first of all, whether your company as a whole is subject to a higher or increased health risk. This will apply for example where your company conducts regular business trips to China or regularly receives business visitors from China.
- Review your company’s existing hygiene standards and improve or adapt them where necessary. Clean and disinfect on a regular basis all communal areas used by more than one several employee, such as kitchens, coffee machines, water coolers, toilets, all open-plan offices and desk-sharing workstations. As the employer you must provide your employees with all equipment and materials necessary for the disinfection of at risk surfaces such as keyboards, desk tops etc. and toilets as well as the entrances to company premises. It makes sense to introduce these measures even for normal seasonal infections such as flu.
- Inform all your employees at an early stage about any existing health risk and about what preventive measures and rules of conduct (especially hygiene rules) the company is putting in place. We recommend that the company designates a health contact person to whom employees can turn with any questions they may have.
- Avoid all group gatherings on company premises as soon as you suspect an infection or an increase in overall risk .Physical meetings should thus be replaced by conference calls instead. Social events must be cancelled or postponed.
- Develop a health protection strategy for your company – where applicable in close cooperation with the works council.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.