1. What options do employers have and/or what are you seeing in terms of re-opening the workplace e.g. phased returns, rotating shifts, staggered working hours, etc.?
In principle, the employer can decide when and how to reopen the workplace and the organization of the work (e.g. time, place) as long as it is covered by the employer’s right to give instructions and the terms of the employment contract. The limit of this right depends on each individual case, balancing the employee’s and employer’s interests, particularly on health issues. However, if the direction given by the employer is contrary to the employment contract, agreement with the employee must be found.
Because the decision on how to reopen the workplace affects the health of the employees, the works council – if there is one – has a right of co-determination under para. 87 sec. 1 no. 7 Works Constitution Act (Betriebsverfassungsgesetz, or BetrVG).
The works council also has a right of co-determination under para. 87 sec. 1 no. 2 and 3 Works Constitution Act when the decision changes the current working times or hours, and under para. 87 sec. 1 no. 5 Works Constitution Act when the decision affects the annual leave arrangements.
2. Does an employer have to give notice to employees to return to the workplace?
There is no strict rule, but again the employer must balance their interests and the employees interests, and take a reasonable decision.
This means that, depending on the individual circumstances, the employer has to give notice to employees to return to the workplace, so they can, for example, organise how to get to work without using public transport or ensure their children have childcare. At least three days’ notice would be reasonable.
3. Is an employer obliged to consult with employees/representatives about the return to work process?
As per question 1 above, the employer can decide when and how to reopen the workplace. The employer must take reasonably decisions, balancing their interests and the employees’ interests (e.g. their health or family situation). However, this does not mean that there is an mandatory consultation with employees. A work council – if one exists – always has a right of co-determination on measures to secure the health of the employees, changing working hours/times, or remuneration changes.
4. Are there any requirements or recommendations for employees to wear or employers to provide masks or other protective equipment in the workplace?
According to the SARS-CoV-2 Occupational Safety and Health Standard of the Ministry of labour and social affairs, mouth-and-nose coverings must be provided and worn if the minimum distance of 1.5 m between two persons cannot be reliably maintained.
This means the employer has to pay for it, since it is their responsibility to meet these regulations. Whether the employer needs to provide employees with other protective equipment depends on its necessity, which in turn depends on the type of job.
5. When can business travel resume and what are the key considerations for employers?
Business trips should be reduced to an absolute minimum. Employers should use technical alternatives like telephone or video conferencing. If a face-to-face meeting is necessary, participants must maintain safe distancing. This recommendation will likely stay in place for the foreseeable future.
6. If schools remain closed, can working parents continue to work from home?
As long as para 56 sec. 2 infection protection law (Infektionsschutzgesetz – IfSG) is in effect and the schools remain closed (or are only partially opened), working parents are allowed to stay at home to take care of their children under certain circumstances.
The children must be younger than 12 years old, disabled, or in need of help for other reasons and no other childcare is possible.
Otherwise, employers can decide whether parents can (continue to) work from home (see questions 1 and 2 above), taking into account the employer’s interests and the employee’s interests.
If, for the employee in question, working from home in this specific case has been successful so far, there are good reasons to continue to allow this.
7. What’s the German corona-warning app?
Since 16 June 2020, the government’s corona-warning app has been available for voluntary download. In the first week, it was downloaded almost 12 million times (around 15% of all Germans). The aim of the app is to detect and interrupt possible chains of infection at an early stage. The tracking of infections is greatly accelerated by this digital help. Nevertheless, German authorities have made clear there’s no obligation to use the app.
At the same time, many employees are returning to their workplaces in compliance with necessary hygiene standards and concepts established by their employers. Employers may wish to provide for the use of the corona-warning app in the workplace, or even want to require employees to use it.
8. Can employees be required to use the corona-warning app on their private mobile phones?
If there is no other legal basis for the use (in particular, if there is no explicit agreement between employee and employer), an obligation to use the corona-warning app can arise solely from the employer's right to give instructions (sec 106 industrial code, Gewerbeordnung).
However, the employer’s right to give direction is not unlimited. In particular, there is no right to access the employees' private devices or to issue instructions in this respect. This area is not covered by the right to give instructions. Further, such instructions would also be inequitable and would contradict the principle of the voluntary use of the corona-warning app.
This also means that no negative consequences may be attached to the non-use of the corona-warning app, as this would constitute an indirect obligation to use the app. The Data Protection Conference of the German Federal and State Governments has sad that "the principle of voluntariness must not be undermined by any use other than for the intended purpose. Access to ... workplaces ... must not be made dependent on the use of the app. This would constitute an improper use, which is already incompatible with the concept of voluntary use."
Even a works council agreement cannot establish such an obligation to use the app. The limits with regard to private end devices also apply here.
As such, there’s no general basis for requiring employees to use the app on private mobile phones.
Employers may, of course, encourage their employees to use the corona-warning app and emphasise its benefits, both for the individual user and for the company.
9. Does anything different apply to the use of a mobile phone provided by the employer?
The situation is different if the employee uses a mobile phone provided by the employer. The argumentation regarding the inadmissibility of access to private end devices does not apply here.
In this respect, there are very good reasons to affirm the mandatory installation of the corona-warning app on mobile phones provided by the employer.
However, the works council has an obligatory right of co-determination under sec 87(1) No. 1 and No. 6 Works Constitution Act (Betriebsverfassungsgesetz). The conflict with the fundamental voluntary nature of the use of the corona-warning app is irrelevant. For example, there are (even independently of the COVID-19 pandemic) a large number of – in principle – voluntary rules of conduct that can be made mandatory by the employer by exercising its right to give instructions..
However, a distinction must be made with the mandatory use of the corona-warning app outside working hours. There is no corresponding basis for obliging the employee, the interests of the employees predominate, and the employer has no influence on this private sphere. Here, the right to give instruction no longer applies.
10. What are the consequences of a warning given by the app from the point of view of the employer and the employee?
Both in the case of (mandatory) use of the corona-warning app on business mobile phones and (purely voluntary) use on private mobile phones, it is possible the app may indicate an increased risk due to (prolonged) contact (at a short distance) with a person who has COVID-19. The app also shows when the contact took place. Further, the corona-warning app gives the advice to "go home immediately" or to stay at home.
In this respect, the probability of being infected with COVID-19 is (significantly) increased – but it is not certain. Only an proper COVID-19 test can confirm for sure.
Nevertheless, from the employer's point of view, precautions should be taken to ensure that these warned persons are isolated (home quarantine) until the suspicion has been finally clarified (this should only take, at most, a few days). The costs of such a test are covered by the health insurance. In this respect, it is recommended to regulate within the framework of the company health management that employees being warned by the app are not allowed to enter the company premises or have to leave as soon as possible. If possible, however, the work should continue to be performed from home. It should also be noted that such a regulation means that – even if it is not possible to work from home – the remuneration must continue to be paid for the period of absence (until a test result is determined).
If the test result is negative, the employee is immediately obliged to resume work. If the test is positive, the general regulations (also regarding continued payment of remuneration) according to the Infection Protection Act (Infektionsschutzgesetz) apply.
However, these measures are effective only if the employee discloses a corresponding warning. There is no possibility of monitoring by the employer. For this reason, in our opinion – even if a positive test result has not yet been obtained – there is an obligation to disclose the app's warning to the employer if corresponding measures taken by the employer are linked to a suspicion.
In the same way, there is also an obligation to inform the employer about the – positive or negative – result of the test. The protective duties of the employer and the secondary duties of the employee correspond here and are mutually dependent. In this respect, the employee must be informed that, if they use the app, they must disclose corresponding warnings. Here, the employer's interest in disclosure outweighs the employee's interest in secrecy.