Is there an entitlement to continued remuneration following a holiday in a coronavirus risk area?
A holiday in a coronavirus risk area
If employees knowingly travel to a destination that has been declared a coronavirus risk area by the Robert Koch Institute then the obligation to pay remuneration may cease to apply. If, upon their return from the risk area, employees have to go into quarantine for up to 14 days then these employees would not receive any remuneration for that period. Claims under both Section 616 clause 1 of the Civil Code [Bürgerliches Gesetzbuch, BGB] (insofar as these have not been excluded in the employment contract) as well as under Section 56 of the Infectious Diseases Protection Act [Infektionsschutzgesetz, IfSG] would likely be ruled out in such a case. This is because, according to Section 616 clause1 BGB, an employee’s remuneration would only continue to be paid if, through no fault of his/her own, s/he had been prevented from performing his/her duties. According to Section 56(1) clause 3 IfSG, a compensation payment would be excluded if it had been possible to avoid quarantine.
The employment law principle of “no work, no pay” applies. By contrast, there could be an obligation to pay remuneration if it is possible to work from home.
During the holiday, the destination is declared to be a coronavirus risk area
If employees travel to a region that is only declared to be a coronavirus risk area during the holiday they are likely to keep their entitlement to remuneration. In such a case, the employee will be entitled to compensation under Section 56 IfSG if s/he self isolates at home and the necessary conditions are present. Likewise, a claim under Section 616 clause1 BGB could be considered if this has not been contractually waived.
If, after having consulted with his/her employer, the employee is able to carry out his/her work from a home office then s/he would be entitled to be paid remuneration.
If the employee falls ill, without this being his/her fault, there may be a claim for continued remuneration under the conditions of the German Continued Payment of Wages and Salaries Act.
Employer’s question about the holiday destination
Generally, employees admittedly do not have to give their employers any information about their travel destinations. However, under coronavirus conditions, an employer’s question, prior to the start of a trip, about where the employee will be spending his/her holiday could indeed be a valid one in view of the employer’s duty of care. This is because, under Section 618 BGB, employers have a duty to protect their employees against dangers to life and health. By asking if an employee had stayed in a coronavirus risk area the employer would be able to take appropriate protective measures. Moreover, the employer would be able to plan for any period of absence or reallocate duties. Furthermore, the question concerning possible claims for remuneration or compensation could be considered to be relevant.
Please note: The obligation to quarantine for up to 14 days after returning from a risk area can be ended earlier following a negative test result. In this respect, the German federal government decided that, as of 1.10.2020, quarantine could be ended on the basis of a test, at the earliest, 5 days after returning.