Vacation in a risk area from an employment law perspective - important information Important information
Traveling/staying in risk areas
The corona pandemic still has us all firmly in its grip. Many employers are now wondering how to deal with employees returning from vacation after a stay in a risk area. We have summarized the most important questions and our answers for you below:
What happens if you have been on vacation in a risk area? Anyone who enters Baden-Württemberg and has stayed in a risk area within 14 days prior to entry must, in principle, go to their own home or other suitable accommodation immediately after entry in accordance with Section 1 (1) of the Ordinance of the Ministry of Social Affairs on Quarantine Measures for Persons Entering and Returning to Contain the SARS-CoV-2 Virus (Corona Ordinance on Entry Quarantine - CoronaVO EQ) and isolate themselves there permanently for a period of 14 days after entry (so-called domestic quarantine). This also applies if you initially entered another country in the Federal Republic of Germany. The assessment as a risk area can change at very short notice. A continuously updated list of risk areas can be found here.
Can I forbid my employees to go on vacation in a risk area? No, you may not. Vacation is a private matter for your employees. However, you can point out that any trip to a risk area can be dangerous for employees and their fellow human beings. Before traveling to a risk area, everyone should think carefully about whether it is absolutely necessary to go there. Considerate interaction with one another is also a duty in the employment relationship.
What do I do if an employee has been on vacation in a risk area? Employers have a duty to all their employees to protect them as well as possible from infection. Employment in the company is out of the question because employees generally have to isolate themselves in home quarantine. If employees have not gone into domestic quarantine contrary to their obligation, do not employ them under any circumstances, but ask them to go into domestic quarantine immediately and point out the obligation to report to the competent authority. Nothing stands in the way of working from home.
How do I find out whether employees have been in a risk area or are perhaps even in home quarantine? Before employees resume work after a vacation, you should request a self-disclosure from them. The employer has a legitimate interest in finding out whether the employee has been in a risk area within 14 days before starting work or whether they may even be in home quarantine. Your employees must answer this question truthfully. If you deliberately fail to do so, you may face consequences under labor law. Employees should be made aware of this before going on vacation.
Is there an entitlement to continued payment of remuneration after returning from a risk area or in the event of coronavirus? There is no case law on this yet. In our opinion, however, there is no entitlement to continued remuneration if employees are not employed after returning from a risk area for reasons of care or due to home quarantine. In such cases, the employee is unable to perform the work. In this case, the employer is not in default of acceptance, which would result in continued payment of remuneration. Whether there is a claim to compensation under the Infection Protection Act in these cases is controversial. The question of whether the entry quarantine introduced by state ordinance is a quarantine within the meaning of Section 56 of the Infection Protection Act has not yet been conclusively decided. Even in the event of illness after a trip to a risk area, there is no entitlement to continued payment of remuneration, as the current prevailing opinion is that this is not an illness for which the employee is not responsible. In our opinion, this applies in any case if the employee already knew or should have known before the start of the trip that the trip was to a risk area. This may be assessed differently if an area is only declared a risk area during the vacation.
Our tip: Write to all your employees before the start of their vacation and inform them of all the possible consequences of a stay in a risk area. Instruct your employees to provide a self-declaration of a stay in a risk area before starting work. You should also insist on notification outside of a vacation (e.g. for a short trip over a weekend). However, if there is a works council, the instruction must be agreed with it beforehand.
Reduction in vacation during short-time work
The coronavirus crisis has forced many companies into short-time working. With the main holiday period approaching, the question often arises as to whether short-time working can affect the amount of vacation entitlement. There is no statutory regulation in Germany on how vacation entitlement is calculated in the event of short-time working. The Federal Labor Court has not yet made a decision on this either. In any case, the ECJ ruled in 2012 that a reduction of leave to "zero" in the case of short-time working "zero" complies with European law. Whether or not the reduction of working hours to "zero" during short-time work leads to the loss of leave entitlements under German law is controversial. In our opinion, vacation can be reduced in accordance with the reduced working hours if the duration of short-time work is foreseeable and plannable for the employee. Only then can it be assumed that the purpose of the leave can be achieved. It is also unclear whether vacation entitlements are automatically reduced during short-time work or whether an explicit provision is required in the employment contract or in a company agreement. You should carefully consider whether you want to reduce vacation despite these legal uncertainties. In any case, the reduction must be expressly declared to the employees before it is implemented, ideally in writing.
No automatic forfeiture of leave: Duty to cooperate according to the case law of the Federal Labor Court and the European Court of Justice
According to the latest case law of the European Court of Justice (ECJ) and the Federal Labor Court (BAG), an employee may not automatically lose their leave entitlement simply because they have not applied for leave. Employers must enable employees to take leave in good time. To this end, employers must provide specific information, which must be given in good time in the calendar year so that employees still have the opportunity to take the leave (already summarized by us here). Only if this obligation to cooperate has been fulfilled by the employer for the relevant leave year can the leave expire at the end of the calendar year.
There have been new developments in case law regarding the employer's duty to cooperate in the case of (long-term) sick employees: according to established case law, statutory vacation entitlements expire after 15 months in the event of continued incapacity to work. However, the decisions of the BAG of 07.07.2020 - 9 AZR 245/19 and 07.07.2020 - 9 AZR 401/19 indicate that the obligation to cooperate probably exists even if employees are unable to work for a longer period of time (we have summarized the current status in detail here). Until a final clarification of the questions by the ECJ, we recommend that you also fulfill the obligation to cooperate with (long-term) sick employees: Ask your sick employees to take their leave after the end of their incapacity to work by the end of the year and provide a notice stating when the leave will expire if it is not taken. After the end of the incapacity for work, you should inform the employees again about the leave and the respective expiry periods.