Labour Law and Coronavirus: You Ask, We Answer

October 2020 update: This article was originally published in April. We have reshared it due to its relevance in the current situation.

The coronavirus crisis has turned our everyday lives upside down. In this challenging time we would like to support you as best as we can. That's why we have already addressed some basic questions about coronavirus and labour law in a blog article. However, as the situation is developing quickly and constantly, new uncertainties arise daily.

Short-time work, dismissals, vacation in times of corona? An expert answers

For this second article we have put your most frequent questions to legal expert Florian Christ. Florian is a specialist lawyer for labour law in Heidelberg and has been very busy during this time – here are his answers.

Unfortunately, many of your questions cannot be answered easily – even if they sound simple at first glance. Many of Florian's answers depend on the individual situation. During these uncertain times, the devil is in the detail, and answers can vary from case to case.

Employer's rights

May an employer force employees to wear a face mask at work?

Given the circumstances, I would say yes.

May an employer force employees to take holidays because business is slow?

Yes, an employer may decide to temporarily close the business for company holidays, forcing employees to take at least part of their annual leave at a certain time.

May an employer require employees to agree to reduced hours and a salary reduction of up to 60%, even though the workload remains the same?

In principle, the employer cannot force employees to sign something that they do not agree to. However, reduced hours are usually in the interests of both sides, as they aim to avoid dismissals for operational reasons. The important thing is that the employee has the right to be compensated for their actual working hours. So if they continue to work 40 hours a week, they must also receive their full salary.

We are all over 60 years old and we all use public transport to get to work. Our employer does not allow working from home. Now we sit tightly together in a small office and without work. Is that legal?

There are two questions at stake here. The first question is: Do you have to go to the office even if there is little or no work? The answer is yes. The employee must fulfil their contractual obligations, even if there isn’t much work to do. However, this must not be a permanent condition. The second question concerns a working-from-home policy. There is no right to work from home in Germany so far. However, if the employee feels acutely endangered in the office, they should address those concerns with the employer. They could even refuse to work on this basis. However, simply refusing to work is likely to end in court.

Can my employer ask me to resign in order to hire me again after the coronavirus crisis?

This would require the formal termination of the employment relationship. However, if the employee resigns themselves or signs a termination agreement, they risk being ineligible to receive unemployment benefits for a period of three months. Therefore, such an agreement is not recommended for the employee.

Is it possible for a firefighter to receive a danger bonus because of the current situation?

The employer can voluntarily grant a hazard bonus at any time. In addition, the subject of hazard bonus is often regulated in company contracts or collective agreements. However, there is no general legal entitlement.

Obligations of the employer

We continue to work as normal and have contact with clients, some of whom we even visit by public transport. We have no protective equipment whatsoever. So we may spread the virus without knowing it. What does labour law say about this?

This is a difficult situation. The authorities have not yet issued any binding regulations, for example on wearing face masks during work, but this could change in the next few days or weeks. However, the employer must already now protect employees and clients as well as possible. If you as an employee are concerned, you should openly discuss this with your employer. Theoretically, there is a right to refuse work if one feels acutely endangered. In this case, however, you can quickly end up at an employment tribunal. A direct agreement with the employer is always preferable.

I work as an educator in child day-care that has been closed for 14 days. My employer has not contacted us since then. Working from home is not possible. Can there be any consequences afterwards if we do not work (such as undertime, fewer holidays or something similar)?

The employer would have to define the legal status of the work and inform the employees. One thing is clear: the employee has done nothing wrong and is available on call. Retrospectively, the employer cannot easily declare this time as vacation, undertime or reduced hours. This would have to be announced or agreed on in advance.

Vacation

May the employer oblige the employee to take their annual leave?

To a certain extent (approximately half of the vacation days), the employer may request employees take vacation at a certain time, for example in the form of company holidays. However, the employee must still be able to freely choose when to take at least a part of their annual leave.

Many employees are unable to take their holidays and could therefore use them for a later date. However, some companies do not allow these days to be cancelled. How is this regulated?

Holidays that have already been granted cannot be cancelled unilaterally – neither by the employee nor by the employer. In order to cancel approved leave, both sides must agree. In this case you should therefore seek a meeting with the boss to discuss an amicable solution.

My employer thinks I have to use 8.5 days of my 26 vacation days by 30.06. As far as I know, employees may take their holidays whenever they want.

This is a common misconception: the employee does not "take" leave, but applies for it. The employer then checks whether this is possible. Especially in the current crisis situation, employees may not be free to decide for themselves when they want to take their days off. The employer may unilaterally determine approximately half of the vacation days.

Reduced working hours

Do short-time working payments apply to mini jobs?

No. In this case, the employment agency does not provide support in the event of loss of employment.

Can working students receive short-time working pay?

You would have to look at the employment contract in each individual case. In terms of employment law, working students are usually considered part-time employees.

Can I look for a side job during short-time work?

Yes, this is possible at the moment. However, this is a special regulation created for the current coronavirus situation and it does not always apply.

Is the 13th month pay also reduced during short-time work?

No. Special remuneration is not included in short-time working for the time being. The exceptions are commissions or bonus payments, depending on the contractual arrangements.

Does short-time work change the conditions of termination?

No.

Working from home

Is it possible to receive compensation for the increased electricity costs when working from home?

In general, yes. However, it is difficult to prove the precise amount of electricity costs. It is advisable for employers to set flat rates here, also for other expenses such as internet and telephone connections.

I flew to my home country India for my annual holiday. Because of coronavirus I got stuck in India. There is currently an EU entry ban and no flights to Germany. Can I work for the German company from India?

In this case you should contact the employer as soon as possible in order to find a mutually acceptable solution. Depending on the job, it might not be possible for the employee to carry out the work activity from abroad. However, given the circumstances, it should be possible to achieve a mutual agreement, so that the employment relationship as a whole is not jeopardised.

As an apprentice, am I allowed to work from home?

As a rule, it will be very difficult for the training organisation to carry out the training activities when instructor and apprentice are working from home. However, this also depends to a large extent on the type of apprenticeship. The apprentice should talk to the person responsible for training.

My employer would like me to work from home and use my personal computer. I have refused and asked for a business laptop. Instead, the employer wants to offer me a PC with a huge separate screen. Can I refuse this? I do not have that much space for the giant screen.

Working from home is not unilaterally enforceable (only if there are existing contractual agreements). In this respect, an amicable solution should be found regarding the circumstances and technical equipment. If space at the employee's home is limited, working from home is not feasible.

Dismissals

Is my boss allowed to dismiss me if the company has closed down due to coronavirus, for example to save money?

No. Saving money is not a legitimate reason for dismissal. That's why there is the possibility of reduced hours. However, if the company has to close down completely, e.g. due to a persistent lack of orders, or if it has to reduce staff on a permanent basis, dismissals are of course inevitable and also possible under labour law.

I am married, have two small children and have been with the company since 2016. Since 2018 I have been with the company on an open-ended employment contract. Can I be dismissed?

If the company has to be permanently downsized, dismissals for operational reasons are possible. However, if only part of the workforce is laid off, the decision will be based on social criteria. These criteria include seniority, family situation, age of the employee and presence of a disability. Employees with dependent children are generally better protected against dismissals for operational reasons than employees without children.

Can an apprentice be dismissed during and after the coronavirus crisis?

Probably not. Apprentices are well protected until the end of their contract. But it’s a different matter if the company is closed down completely.

Is it possible to be dismissed for operational reasons after ten years of employment due to coronavirus?

In general, yes, if the coronavirus crisis leads to a permanent decline in business activity. As a rule, however, employees who have been with the company for a shorter period of time have to leave first. So you are better protected the longer you have worked for a company.

Can I be dismissed despite my probationary period?

In the first six months of a new job, employees are generally not protected against dismissal.

I have been put on short-time work. The agreement states that short-time work is valid until the end of the fixed-term contract if the epidemic would last until then. Can the employer dismiss me anyway?

Yes, if the employer has a reason recognised under labour law for doing so. So if the measure of short-time work is not sufficient and the company has to be permanently downsized, dismissals for operational reasons are permitted. In individual cases, however, it will have to be considered whether, for example, company agreements or collective agreements exclude the possibility of termination during periods of short-time work.

I work as a money transport driver, and I earn less now because I work fewer hours. If I have to file for personal insolvency, will I lose my job because I work with money professionally? When I was hired, I had to submit information from the German credit reference agency SCHUFA.

If the lack of income leads to private insolvency due to a loss of work through no fault of your own, this would not be recognised as a reason for dismissal. In this case, however, it would be more important to examine why the reduction in hours leads to a significant loss of earnings. If necessary, support in the form of short-time work benefits or other state aid measures would be suitable to reduce the loss of earnings that would occur.

Severance payments

Our employer wants to relocate production to Indonesia. Am I entitled to severance pay?

There is no automatic right to severance pay. If production is verifiably closed down completely, production-line employees can be dismissed for operational reasons and without a severance payment claim. However, severance payments can also be negotiated with the employer in the context of dismissal protection proceedings or social plans.

In the event of a dismissal, when am I entitled to severance pay and how do I receive it?

There is no legal entitlement to severance pay in the event of termination; this is rather a common misconception. However, severance pay is often agreed by both sides in the context of conflicts over dismissal in order to avoid a long legal dispute with risks for both sides. In the event of major waves of redundancies, severance pay claims are sometimes also negotiated by works councils in social compensation plans.

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