Schools and daycare centers have closed in most German states until mid-April. What does that mean for me if I now have to look after my children myself?
If they have children requiring daycare, then parents must first make every reasonable effort to find alternative childcare arrangements. If this isn’t possible, “an employee normally has the right to refuse to work,” the German Labor and Social Affairs Ministry states on its website, adding that “it is not strictly necessary to take holiday leave.” (Click here for more information from the ministry in English.)
But that’s also a bit euphemistic, because workers who don’t go to work normally aren’t entitled to a wage or salary. “Employees are also in an awkward position in the current situation,” says Cologne labor law expert Nathalie Oberthür. “We shouldn’t pretend that this is entirely free of complications,” concurs Munich labor law expert Marc André Gimmy. “Basically, the current situation isn’t provided for in the law,” he adds.
It is true that Section 616 of the German Civil Code (BGB) provides for a claim to continued payment of remuneration, but this only applies in the case of a short-term and involuntary inability to work. If it is clear from the outset that the inability to work will last longer, then it is questionable whether this legal provision will apply. And even when it does, it is only for a period of up to five days. In addition, many labor contracts and collective bargaining agreements include explicit waivers of rights granted under Section 616. In addition, if an employer stops paying your salary, they also stop paying their social insurance contributions (pension, health care, etc.). In the worst case, if you are absent for several weeks, your health insurance could even expire. “There are serious knock-on problems,” says Gimmy, “so all workers are advised to not let the employment relationship lapse even in the current situation, and to instead ensure payment of wages by way of an agreement with the employer despite the quarantine measures.”
For example, it might be possible to work from home or to work at other times of the day when childcare is available. It might also be possible to use overtime hours that have been built up. Or workers could accumulate a negative hours account of unworked hours that they could make up later. At the company level, the German government’s short-time work program might also be an option. The government in Berlin just made it easier for companies to apply the program, which provides government subsidies allowing companies to shorten working hours for their employees, with the government picking up part the shortfall in workers’ wages and social insurance payments.
“Creative solutions are needed on both sides,” says Gimmy. Oberthür adds, “We need to be taking a lot of concerted action rather than just asking who’s entitled to what.”
There are also cases where employees may be required to take vacation for the entire period in which they can’t work, even if this means using up a big chunk of that person’s annual leave.
And employers aren’t even required to approve that leave if there are operational reasons for refusing. Ultimately, workers can stay at home if they have no other option, but without pay and social insurance benefits. Dismissal could even theoretically be possible. But Gimmy believes that might be viewed as disproportionate action in light of the current situation.
Would taking unpaid leave be a solution?
Unpaid leave is ultimately an unpaid leave of absence, and here, too, the company isn’t required to pay social security and health insurance contributions for you. If that unpaid leave lasts for more than one month, the company is no longer required to pay its share of your social insurance benefits, meaning that your health insurance will lapse and you will have to obtain insurance on your own. “Lawmakers would have to provide for longer periods (before the lapse occurs) in order for that not to apply,” says labor law expert Gimmy.
Do I have the right to work from home? Or can I take my child with me to work?
Taking a child to work is only allowed with the express permission of the employer. There is normally no entitlement to working from home, says labor law expert Oberthür. If, however, it is possible in principle and doesn’t stand in the way of company interests and it is urgent for the employee, then “an employer should not oppose working from home in the current situation,” says Oberthür. The labor law expert says lawmakers might want to consider establishing a temporary right to work from home, in light of the current situation.
Do I have to go to work if I’m afraid I will get infected there?
As long as there is no objective danger, you do have to go to work, says labor law expert Oberthür. However, the employer must ensure that safe working conditions are available. For example, they must ensure that workers who might be infected or even sick are kept away. If necessary, they need to be sent home.
If an employer has to temporarily close a business or parts of it, employees will continue to receive their pay. That applies unless there is a clause in your employment contract or collective bargaining agreement that states otherwise – for example in cases where the closure is out of the control of the employer, as is the case with most closures happening right now.
Health Minister Jens Spahn has now called on people returning from high-risk areas like Italy or Madrid to undergo “voluntary self-quarantine” for two weeks. What does that mean in terms of labor law? What applies to an officially ordered quarantine?
“Even if the health minister says so, it’s no automatic justification to just stay at home,” says labor law expert Gimmy. It’s basically the same as with not being able to find alternative childcare: The employee has to find an amicable solution with the employer. But this should be possible – it’s in the employer’s interest, after all, to hold on his or her other employees and employers are also legally required to protect the health of their workers.
With such a short period of 14 days, Oberthür says, it would also be possible to temporarily “suspend the employment relationship for the purpose of epidemic control.” However, to ensure that social insurance (pension and health insurance) protection is covered, the salary would need to continue to be paid.
If no arrangement can be found, the employee would have to take vacation for the 14 days. “You can’t just give yourself time off,” says Oberthür.
But the situation changes if the health authorities have imposed an official quarantine on the worker. Then they are required to stay home. In those instances, the employee continues to draw his or her salary and the company can apply for compensation from the government. If the quarantine lasts longer that six weeks, the employee is directly entitled to compensation, but only at the amount of sick pay that is covered by their public or private health insurance provider. In contrast, voluntary quarantine doesn’t cost the state anything — at least not directly.
And if employees are ill, they can take sick leave. As always, they are also entitled to stay home for a few days if their child is sick. However, remuneration only applies in cases where Section 616 BGB is applicable.
When can I take sick leave?
As always — in the event of sickness that makes you incapable of working. But there is one exception currently: Sick leave is currently possible for “patients with mild upper respiratory tract diseases” without even. having to visit a doctor. All they have to do is call their doctor and ask for a sick note to be sent to them by mail. This provision was agreed to by the National Association of Statutory Health Insurance Physicians and the Central Association of Statutory Health Insurance Funds at the beginning of March. The rules have initially been put in place for the next four weeks.
In the event of illness, of course, wages will continue to be paid by the employer. After six weeks, the salary ends and the sick person is then given the sick pay benefit covered by their health insurance company. By contrast, in the United States, many workers aren’t entitled to any compensation from their employers during the corona crisis. “The sick there are dragging themselves on to work, just so they won’t lose their wages,” says Gimmy. “We’ll be seeing chaos there soon.” Despite the burdens that now exist for employers and employees in Germany, “our system is much more competitive,” Gimmy says.
Do I have to continue paying my monthly daycare or school fees if they are closed?
Considerable sums of money are often involved here – and they become even more painful if you’re not making money right now. “I would stop paying for now or pay less,” says labor law expert Gimmy — because the service, childcare, is no longer provided if the facility is closed. And the aid measures from the federal government should kick in here, providing the appropriate level of state compensation to the school or daycare center. But Gimmy also suggests that “an amicable solution be sought here as well.”
Can my employer pressure me to work less because of a lack of customers and orders?
“No, pressure is not allowed,” says employment lawyer Gimmy. The company must either make use of the statutory short-time working rules, by mutual agreement with the employee or the works council, or it must reach individual agreements with its employees. This also applies to unpaid leave. The problem, warns Gimmy, is that “if the employee doesn’t cooperate, then he or she could ultimately be threatened with dismissal for business reasons and the loss of his or job.”