In this episode of our Arbeitsrecht podcast, Matthias Unterrieder and Isabel Firneis discuss employment law implications of the end of COVD-19 quarantine rules and the introduction of new restrictions effective as of 01 August 2022. The new regulations raise a number of questions, including whether infected employees have to inform their employer about the infection, if infected employees can or even must come to work and what employers have to consider when employing infected employees.
The new regulations remove the obligation to quarantine for persons who tested positive for COVID-19, meaning that they would have to come to work unless they call in sick. There are however extensive restrictions for infected persons (e.g. broad FFP-2 mask-wearing obligations), which also apply in workplaces.
Informing the employer
Currently, there is legal uncertainty regarding a potential obligation to inform: the new regulations do not contain an explicit obligation to notify the employer of being infected with COVID-19. An obligation to inform might however be argued based on the general duty of loyalty (Treuepflicht).
This could at least be argued as long as special regulations for infected persons apply, which must also be adhered to at the workplace. There are however also a number of reasons to argue that there is no reporting duty for employees. Firstly, the subject matter is health-related information, which employees in general do not have to disclose to their employer. Secondly, as there is no obligation to quarantine, infected employees can continue to perform their work, if they feel well enough to do so.
Wearing a mask in the workplace
There is no explicit mask-wearing regulation for workplaces, which, for example, provides for additional or stricter mask-wearing obligations. Therefore, the general rules prescribing wearing a mask in enclosed spaces and outdoors apply in the place of work. The only addition for workplaces is the prohibition to enter workplaces if the employee cannot wear a mask for medical reasons or because the work performance would be made impossible by wearing it all the time.
The broad mask wearing obligations for infected employees apply in enclosed spaces, where contact with other persons cannot be excluded (e.g. in open-plan office), meaning that infected employees cannot take off their masks at the workplace for eating and drinking.
A practical solution to some workplaces could be setting up a separate room for infected employees, as the new regulations do not apply between infected persons, where they can take a break from wearing a mask and consume food and drinks.
Fit to work
Many employers now want employees who have tested positive to come to work. However, employees can still call in sick, if they do not feel fit to work. The new COVID regulations do not distinguish between symptom-free employees or employees with symptoms. This means that only the general regulations regarding sick leave apply: employees have to work, even if they show symptoms, unless they are unfit to work and are therefore on sick leave.
Working from home arrangements
On the other hand, some employers may want to avoid any risk of setting-off a Covid-19 wave in their offices and might demand that all or at least infected employees work from home. In general, the performance of work from home requires an agreement between the employer and the employee. However, we believe that home office can be unilaterally demanded by the employer for infected employees for the short duration of their infection, based on the general duty of loyalty.
Alternatively, if employees cannot work from home but employers do not want infected employees in the workplace, employers might consider sending these employees on gardening leave for the time of the infection. However, this leads to additional costs for the employer, as the employee remains entitled to full remuneration for this time off from work. Further, this time period is not counted towards the entitlement to paid time off in case of sickness or accident.
Ensuring compliance with the mask-wearing requirement
In cases where the employer knows that the employee is infected with COVID-19, in our view, the employer must monitor compliance with the mask-wearing regulations by setting-up internal control and evaluation processes.
Works council role
From our point of view, in general no works council agreement is necessary to control compliance with the current COVID-19 regulations in the workplace, as such control measures are required by law and do not affect human dignity. However, this assessment can change depending on the control density and intensity.
If colleagues of the infected person become infected, but all applicable rules are observed and compliance is sufficiently monitored by the employer, we believe the employer will not be liable.
Employers’ entitlement to reimbursement
Until now, the employer was reimbursed by the state for the costs of continued remuneration for an employee who had to quarantine in accordance with the Epidemic Act. The removal of the obligation to quarantine eliminates the general entitlement for reimbursement to employers.
Special care time for employees for children who have tested positive and are not allowed to go to nursery has not been re-introduced yet. Therefore, currently only the general rules for taking care of sick children apply.