Labour law issues around holidays in times of pandemic

Trixi Hoferichter is a lawyer for labour law and a business mediator. Specialising in management conflicts, she helps people every day at all hierarchical levels and in all professional situations to get out of conflict situations. Before Hoferichter started her own business, she also gained 15 years of corporate experience at BOSCH and thus knows all angles. Today she answers the most important questions about leave in times of pandemic.

Do I have to tell my employer where I am going on holiday?

Well, in principle, the employer has no right to know.

The holiday destination falls within the employee's private sphere. However, the employee has a duty to inform the employer if the holiday is to be taken to a risk area designated by the Foreign Office. If such an area has been given an official travel warning because of the risk of infection and quarantine is compulsory, this is no longer within the employee's private sphere.

The employer has a duty of care for his employees, § 618 I BGB. He must take care of the health of the persons employed in his company.

Therefore, the employee must inform the employer if the holiday is to be spent in a risk area or was spent there.

Can the employer ask for a coronary test upon return and before starting work?

If the employee has been in a risk area, the employer may require the employee to be examined. This must be in accordance with § 106 sentence 1 GewO in conjunction with § 315 BGB.

In certain companies, however, there is a company regulation that includes a testing obligation. For example, in special areas where a possible infection would have particularly serious consequences, regular testing is provided for. An example of this would be a hospital or a home for the elderly.

In addition, since 20.04.21 an amendment to the SARS CoV Occupational Health and Safety Ordinance has been in force, which stipulates an obligation for companies to offer tests in order to prevent the spread of the virus and to quickly detect possible infections. For employees who do not only work in a home office, the employer must provide one or two tests per week. It does not have to be documented whether the test was actually taken, it is sufficient if they are provided. This regulation is expected to apply until 30.06.21.

Can the employer insist that I go into quarantine? If so, do I have to take leave for the time?

The employer cannot order quarantine if there is a reasonable suspicion that the employee is infected, the employee has had contact with an infected person or comes from a high-risk area. However, the employer may refuse to accept the employee's work.

In this case, however, the employee does not have to bring in any holiday entitlement.

If the employee is ill, the days of incapacity for work are not to be offset against the annual leave. The holiday entitlement therefore remains.

If, on the other hand, the employee is not ill and quarantine has been ordered due to a suspected infection, he/she is not incapacitated for work and must continue to perform his/her work duties. The employee in quarantine could - if possible - perform his or her work from home. If it is not possible to work from home, the employee will receive compensation equal to the net salary.

Again, there is no offsetting of leave.

What if I have to go into quarantine during my leave? Will I be reimbursed for the days of leave?

As mentioned above, it depends on whether you are ill or in contact or not and whether you knowingly went to a risk area or not.

If the employee is ill, the days of incapacity for work are credited - just as it is the case if the employee falls ill during his/her holiday, § 9 BUrlG. For this purpose, the employee must submit a certificate of incapacity for work to the employer. If the employee is not ill and has to go into quarantine, it is decisive whether the employee acted culpably in the situation and thus caused the quarantine himself or not.

If I have to go into quarantine after leave, do I have to take leave for that time? What if I can work from my home office?

If the employee can work from home during the quarantine period, the wage entitlement remains and the granting of leave does not seem necessary.

If the employee is idle during the quarantine, he/she is not entitled to remuneration, but may be entitled to compensation under section 56 I IfSG. According to section 56 I sentence 1 IfSG, persons receive compensation for their loss of earnings who are in domestic quarantine due to the Infection Protection Act. However, this compensation can only be considered if the holiday destination has only been declared a risk area after entry. In this case, the claim to payment of the remuneration remains valid, as the employee did not act culpably, section 616 BGB in conjunction with section 56 IfSG. § 56 IfSG.

The case is different if it was already known before departure that the holiday destination is an official risk area. In this case, the entitlement to remuneration does not apply.

Can my employer refuse to pay my wages if, for example, I spent my holiday in a risk area and then have to go into quarantine?

If the employee knowingly travels to an area for which a travel warning has been issued, the employee is culpable for preventing the performance of work.

In this case, the employer is exempt from the obligation to continue paying wages for the obligatory quarantine in accordance with § 616 BGB.

Can I withdraw submitted leave because of the risk of corona in the holiday country?

In principle, approved leave does not have to be withdrawn by the employer. The fear that the employee could become infected or that he or she will not be able to enjoy the holiday as desired is not a reason to withdraw a holiday application.

Can the employer take employment action against me because I was in the risk area and subsequently have to go into quarantine? Can I be dismissed or given a warning?

Basically, it should be noted at this point: An employee only has to fear consequences under labour law, such as a warning or dismissal, if he or she violates duties arising from the respective employment relationship. In this case, it would have to be proven that the employee has violated a secondary obligation arising from his/her employment relationship, i.e. consideration for the interests of the employer or other employees. This would be the case, for example, if the employee obviously acted against the rules of conduct to minimise the risk of infection and thus clearly failed to show consideration for the employer and colleagues.

Do I have to submit my Corona-test result in writing or is my word sufficient?

In principle, employees are not obliged to provide information about their state of health. The employee is not obliged to do so unless there is a predominantly justified interest. In principle, the employee also does not have to comply with the employee's request to submit a negative Corononatest. However, Section 1 of the CoronaVMeldeV must be taken into account if there is a reporting obligation under this standard.

Every day she accompanies managers throughout Germany in difficult employee and self-management situations. She always shows her clients and customers ways in which all sides can deal with crisis situations in a positive and profitable way. In publications, coaching sessions and seminars, Hoferichter inspires her clients not only with her expert knowledge, but also with her quick and critical perception and her love of precise solutions and concrete practical examples.