Quarantine

Quarantine / Quarantäne

May 28, 2021

Labour law consequences of an officially ordered quarantine

Due to the Corona pandemic and the measures installed by politicians, there is a constant potential danger of having to enter a two-week quarantine in accordance with section 30 I Protection against Infection Act (IfSG) due to an infection with Sars-CoV-2 or a suspicion of an infection. This officially ordered deprivation of liberty poses unprecedented challenges for employees and employers alike. What this means for the benefit obligations and claims of employers and employees is often uncertain. A typified/grouped presentation can help to classify the consequences more precisely.

Quarantine with infectious disease

If the employee is in quarantine because he is infected and is unfit for work as a result, there is no difference to other illness situations. The employee is released from his obligation to perform according to section 275 (1) of the German Civil Code (BGB) and loses his claim to remuneration according to section 326 (1) BGB. However, he then has a claim against the employer for continued payment of wages for a period of 6 weeks according to section 3 I 1 Continued Remuneration Law (EFZG). Even if the employee is classified as fit for work despite being infected, an infection with the Corona virus would still be equated with an illness that is unfit for work. This is because the employee poses a risk when he goes to work infected. Thus, he is incapable of work in this sense (NZA 2021, 251). Contrary to this, however, the Federal Association of Statutory Health Insurance Physicians calls for no certificate of incapacity for work to be issued in the case of an asymptomatic infection. In the final analysis, it depends on how the treating doctor assesses the symptomatic condition of the infected person. If the employee is infected and, according to the doctor's assessment, is not incapacitated for work, claims and benefit obligations are measured according to whether or not the employee can perform his or her work from the home office. The question of whether there is actually an infection in the medical sense or merely a positive test result will not be discussed here.

Quarantine without infectious disease

The employee is in quarantine because an infection is suspected. In this case, there is no entitlement to continued payment of wages pursuant to section 3 (1) sentence 1 EFZG because the employee is not incapacitated for work.

Duty to perform from the home office is possible

If the employee can perform his work from home office during the quarantine, the employer is still obliged to pay his wages.

Duty to perform from home office is impossible

If the employee cannot perform his work from the home office during the quarantine, the employer does not owe him any wages. However, the employee is entitled to compensation under section 56 (1) IfSG for the resulting loss of earnings. According to section 56(1)I IfSG, compensation is paid for a period of 6 weeks to anyone who is subject to a ban on exercising their profession or to quarantine as a carrier of an infection, a suspect of infection, a suspected carrier of a disease or any other carrier of pathogens as defined in section 31 sentence 2 IfSG and who suffers a loss of earnings as a result. In this case, the employer must make advance payments to the employee on behalf of the authorities. However, the employee can claim the money back from the competent authorities within three months. If the employer does not advance the money, the employee can also make the claim himself. If the employee has a claim for payment of loss of earnings under section 56 (1) IfSG, this will only be granted if the employer has no other obligation to continue paying wages. In this case, such an obligation could arise from section 616 sentence 1 BGB. According to this provision, an employee who is obliged to render services is not denied remuneration if he is prevented from rendering services for a relatively insignificant period of time due to a personal reason for which he is not responsible. It is to be assumed that the employee is initially not at fault as long as there is no evidence to the contrary. An infection or the suspicion of an infection is regarded as an obstacle inherent in the person. However, it is uncertain how long a period of time must be before it is no longer considered relatively immaterial. It is generally held that a relatively insignificant period of time within the meaning of section 616 sentence 1 BGB comprises ten days. An officially ordered quarantine exceeds this period, so that section 616 sentence 1 BGB should not be relevant. However, the question as to the period of time from which materiality exists is disputed and still unresolved. An application for reimbursement on the part of the employer is thus regularly rejected. The authorities refer to a ruling of the Federal Supreme Court from 1978, in which a period of up to six weeks is still considered reasonable. However, this can be avoided by contractually waiving section 616 sentences 1 BGB. If this is not desirable or causes complications, it is still worth filing an application for loss of earnings payment under section 56 IfSG, should the materiality threshold still change. If a large number of employees or even an entire company is affected, then the materiality threshold of section 616 sentences 1 should definitely be exceeded, so that a loss of earnings payment under § 56 I IfSG should be granted.