For many employees, holiday is the best part of the summer. Unfortunately, in times of Covid19, whether the dream holiday turns into a nightmare or not depends not only on the tour operator, but also on the state of health on return.
Be prepared – also with the works council
It is important for employers and employees to take precautions before going on holiday and to develop quarantine plans for the return. In principle, it is advisable to prepare everything for a possible quarantine before the start of the leave. This way, if necessary, work can also be done from the home office. Employees can, for example, take the necessary technical equipment home with them on their last day of work or have the required server access set up in the home office.
In companies with a works council, it is possible to draw up joint plans for all eventualities in works agreements. Because: It should not be overlooked that the works council has a right of co-determination on health issues according to §87 I No. 7 BetrVG. A conceivable variant would be, for example, a travel return form, which is justified under Art. 88 DSGVO and Sec. 26 I 1 BDSG because the collection of this data is necessary.
Rights of the employer
Normally, the employer is not entitled to ask questions about the employees’ holiday destination. Such aspects are protected by the right of personality. However, during the Corona crisis, the employer has a heightened duty of care for its employees and its business. Protective measures must be taken for the rest of the workforce and organisational measures must be taken for the work process when employees are quarantined. This entitles him, exceptionally, to ask necessary information such as the holiday destination. The employee has a duty to answer the question truthfully. However, the employer is not entitled to prohibit the employee from travelling.
What to do when the employee returns from the risk area?
All travellers returning from a risk area must undergo a Corona test. (The current list of risk areas can be found on the website of the Robert Koch Institute and the Foreign Office). If the worst-case scenario occurs and the employee must go into a 14-day quarantine, the question arises as to what rights he or she is entitled to. (Important: Each federal state has its own quarantine regulations. It is essential to find out what they are beforehand).
The basic rule is “no work, no pay”. Possible claims for continued payment of wages in such cases, such as §616 BGB (German Civil Code), §56 IfSG (IfSG) or claims from EntFG (EntFG) do not apply in this case, as leave in a risk area is considered “danger against oneself” or “fault against oneself” if the risk situation has been made known in advance and the employee has voluntarily gone into such a danger. The press spokesman of the Federal Ministry of Health did say on 26.08.2020 that workers in quarantine should receive compensation according to §56 para. 1 sentence 1 IfSG, even if the holiday destination had previously been classified as a risk area. However, there are considerable legal and practical doubts about this statement. This is because in the case of a later application by the employer for reimbursement of the compensation paid to the employees, the competent authorities and administrative courts do not have to come to the same conclusion as the Federal Ministry of Health.
The situation is different if the area visited is only declared a risk area during the holiday. In this case, there is no “risk against oneself” and any claims under §616 BGB. §56 IfSG and EntFG are therefore not excluded. The “travel risk”, i.e. the risk of not being able to return from the holiday destination on time, continues to be borne by the employees.
In the case of business trips, the employer has an increased duty of care. It should be carefully checked beforehand whether it is necessary. If employees have to go into quarantine in the course of the business trip, they are entitled to continued payment of wages.
Conclusion: In the current situation with Covid19, it is important to think beforehand and take the right measures. The information from this article can help ensure that the next holiday will be a dream holiday despite Corona – for both employee and employer.
Disclaimer: Many scenarios have not yet been conclusively clarified in legal terms. Recommendations are made here solely based on similar cases and plausibility. It is essential for all parties involved to keep abreast of current developments.