In June, the summer vacations began in the first federal states, and with them the vacation season. Despite the continuing existence of the coronavirus, one employee or the other doesn't want to be deprived of the opportunity to fly off on their long-awaited vacation, even if the vacation destination is designated as a risk area by the Robert Koch Institute (RKI). But what are the implications for the employment relationship? Does the employer have to continue to pay wages during a subsequent quarantine? May the employer inquire where the employee will spend/has spent their vacation? We provide you with an overview here.
Entry requirements in Germany
The current entry quarantine regulations of the individual federal states stipulate that anyone entering the country from abroad who has been in a risk area for the last 14 days must, as a rule, remain in quarantine (i.e. isolation) for 14 days. The details may vary from state to state. The RKI defines risk areas as those areas in which more than 50 new infections per 100,000 inhabitants have been recorded in the last seven days or in which there is danger of an increased risk of infection despite the fact that this value is not reached. Popular destinations such as Sweden, Turkey, Egypt or Morocco are currently on this list.
Is an employer allowed to ask about the vacation destination and health?
Before an employer can think about measures to protect its other employees, the first question that arises is how it can find out whether one of its employees is infected or must go into quarantine due to the existing regulations. Employers are still not allowed to ask about the specific vacation destination. However, it is permissible to ask the employee whether they have been in a risk area for the last 14 days or whether they are planning their vacation in a risk area.
To be able to prepare for the situation, the employer must ask the employee whether they are planning a vacation in a risk area before the employee goes on vacation. Since it is a legitimate question for the employer to ask, the employee must answer it and the answer must be truthful. Refusal to answer or an incorrect answer may result in consequences under labor law.
In addition to the question about where they are staying, the employer can also ask the employee whether they have any flu-like symptoms such as fever, cough and/or shortness of breath.
Does the employer have to continue paying wages in event of illness?
Pursuant to Section 3 (1)(1) of the Law on the Payment of Wages on Public Holidays and in the Event of Illness (EFZG), the employee is entitled to continued payment of wages if they are prevented from performing their work due to illness through no fault of their own. The employer must then continue to pay these wages for up to six weeks. The question now arises as to whether this entitlement still exists if the employee deliberately takes a vacation in a risk area and has become infected there. Are they still prevented from performing their work »through no fault of their own« in this case?
The employee is not culpable for being prevented from performing work if they go on vacation to a particular country and this country is subsequently declared a risk area during the stay. They therefore have a right to continued payment of wages in such cases. But what happens if the destination country is already classified as a risk area before departing on the vacation?
The predominant view in the literature (a court decision regarding coronavirus has not yet been made) is that in such situations the employees are probably »culpable against themselves« if they nevertheless embark on the vacation in the knowledge that the destination country is a risk area. They would then not be entitled to continued payment of wages if they become infected with COVID-19 during the vacation.
Continued payment of wages in the event of officially ordered quarantine
If the authorities order a quarantine for the employee regardless of their entry from abroad (e.g. because of contact with an infected person), there is a possibility that the person in question may be entitled to allowance under Section 56 of the Law for the Prevention of Infection (IfSG). However, the existence of a »culpability against oneself«, which can also exclude a claim, will also have to be taken into account here.
Continued payment of wages in the event of entry quarantine
If the employee is in entry quarantine because they entered Germany after taking a vacation in a risk area, the employee remains obliged to perform work to the extent that such work remains possible – in particular, by working from home – provided that they are not incapacitated for work altogether.
If this is not possible, the employee is not entitled to continued payment of wages pursuant to the EFZG and, as a rule, also not in accordance with Section 616 of the Civil Code (BGB). For one thing, traveling to a risk area in the knowledge that an entry quarantine would then be necessary likely counts as culpability that would exclude a claim. In addition, a prerequisite for a claim under Section 616 of the Civil Code would be that the employee is only prevented from working for a »relatively insignificant period of time«. It is correct to consider a mere few days as insignificant, which makes a 14-day quarantine not a relatively insignificant time.
The employee is also unlikely to be able to claim compensation under Section 56 IfSG. Aside from the question of whether the entry quarantine is a quarantine within the meaning of the IfSG, the question of contributory negligence (culpability against oneself) must also be considered within the scope Section 56 IfSG. It is therefore unacceptable for the state to have to pay for a loss of wages caused by the employee themselves because they voluntarily enter a risk area and are subsequently quarantined.
Hence if the employee is in entry quarantine without being seriously ill and unable to perform their work as a result, they are not entitled to continued payment of wages or compensation under the IfSG.
However, there is the possibility of getting tested for infection with the coronavirus to avoid or shorten the entry quarantine. The details regarding the requirements for the tests are set out in the individual federal states' entry quarantine regulations.
Recommendations for action
To avoid any confusion about whether the vacation destination is a risk area at the time of departure, it is advisable to issue a form to the employee before the start of the vacation in which they provide details about the vacation period, risk area yes/no and the current status according to the RKI list with a link to this. In addition, the employee should be made aware of the consequences if they go on vacation in a risk area (entry quarantine, no continued payment of wages, no right to compensation). It should also be noted that the regulations of the federal states, like the risk areas listed by the RKI, are subject to constant change, so it is necessary to check regularly whether there have been any changes.