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Corona Pandemic:
Questions & Answers for Entrepreneurs

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As a lawyer, Thomas Jacobsen has been advising employers in the entire field of individual and collective employment law for 20 years. In addition to representation before labour courts, his main areas of expertise include negotiating works agreements and advising on working time models, partial retirement and company pension schemes.
For Sawayo, the expert regularly addresses issues relating to the handling of the Corona pandemic in companies and provides advice for company practice.
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Exemption from the mask requirement by medical certificate?

During the still ongoing Corona pandemic, the face mask, whether as a textile community mask or more recently as a medical mouth-nose protection, has become commonplace. Meanwhile, even in the office. However, the mask requirement does not come without restrictions. The Corona ordinances of the federal states, which regularly also apply to the workplace, contain requirements for exemption from the mask obligation.

The Siegburg Labor Court recently reached a decision on a medical exemption from the mask requirement at the workplace and rejected a corresponding employment claim by the plaintiff in its ruling of December 16, 2020 (Case No. 4 Ga 18/20).

Although the plaintiff had submitted a medical certificate with an exemption from the mask requirement, the employer was allowed to order the plaintiff to wear a mouth-nose protection at the workplace. This was covered by the employer's right of direction under Section 106(1) of the Trade, Commerce and Industry Regulation Act. In the court's opinion, the health and infection protection of all employees and customers took precedence over the plaintiff's interest in working without a mask. Because in the current pandemic situation, the employer had to ensure that employees and customers were exposed to the lowest possible risk of infection.

In the opinion of the court, the medical certificates submitted were not sufficient to justify medical aspects for an exemption from the obligation to wear a mask. A certificate must contain concrete and comprehensible information as to why a mask cannot be worn. Only in this way is an employer in a position to independently check whether a mask must be worn or not.
With this argumentation, the Siegburg Labour Court is in line with the Münster Higher Administrative Court, which ruled in September 2020 on the obligation to wear masks at schools.


Public holidays - Work is done at work and home office is free?

Public holidays - some have more of them, others less. The front-runner in terms of public holidays is Bavaria, with up to 13 public holidays in Catholic communities. If you work in the city of Augsburg, you usually have one more public holiday, the Augsburg Peace Festival on August 8 (unless it falls on a Sunday like in 2021). The fewest public holidays are in Hesse and the northern states of Schleswig-Holstein, Hamburg and Mecklenburg-Western Pomerania. 

Whether an employee has a day off on a statutory working day depends on where the workplace is located. If home office is agreed between employer and employees, the holiday regulations of the respective place of residence apply.  

For example, someone who works in their home office in Potsdam on Reformation Day has time off, even if their employer's branch office is in Berlin. And the reverse is also true: The employee must work if it is a holiday at the employer's headquarters but not at the home office. So if colleagues are enjoying a long weekend in Berlin on 8 March 2021 (International Women's Day), you have to work in your home office in Potsdam.

Practical tip: When determining the home office working days, employers should discuss the upcoming holidays in the year with their employees and take into account the different holiday regulations of the federal states.

Can the boss require the camera to be activated during digital meetings?

Digital meetings via Skype, Zoom, Teams or other platforms have been part of everyday life in many companies since spring 2020. Although these technical solutions cannot completely replace face-to-face meetings, they are a sensible alternative to telephone calls and will continue to be so even after the Corona pandemic. The video function, which can be used on the current platforms, offers a decisive advantage over the telephone call.

But can the employer also demand that his employees activate the video camera? And can he enforce this, if necessary, with the usual instruments of labour law, in particular a warning? Or can they withdraw to their personal rights and refuse to activate the camera?

The order to activate the camera during a digital meeting results from the employer's right of direction. On the basis of Section 106 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung ), the employer can, among other things, generally determine the content of the work performance in more detail - at his "reasonable discretion". When issuing his order, the employer must take into account the interests of his employees and must see whether there are special regulations in his company for video conferences.
If the employees are in the company, the order to activate the camera by the employer will therefore be effective for all parties involved without any concerns.
Under normal conditions, the boss would also be able to schedule a meeting in person and order the participation of the individual employees.

If, on the other hand, employees are in a home office, the situation is likely to be somewhat different. The employees are then in a private environment and - unlike in the office - personal rights are then to be considered with a higher weight. The boss must then take into account that the mandatory activation of the video camera in the home office will result in a more intensive intrusion into the private sphere of the employees. For example, family members, pets or the furnishings of the home could be compulsorily visible and the question arises whether the disclosure of this data is really necessary for the performance of the employment relationship within the meaning of German data protection law(see Section 26 (1) of the Federal Data Protection Act ).

Practical tip: Use the background suppression or blurring function available with many digital conference systems. This way, invasions of the employees' privacy can literally be faded out and effectively avoided. Problems with work and data protection law during video conferences can be avoided in this way.


Do employers need to purchase medical masks for employees?


The new SARS-CoV-2 Occupational Health and Safety Regulations, effective from 27 January 2021, require employers to purchase and provide medical masks or FFP2 masks to workers in certain circumstances.


The Corona Occupational Health and Safety Ordinance thus joins the Corona ordinances of the federal states as an occupational health and safety regulation, which now consistently stipulate the obligation to wear mouth/nose protection in the office. In some cases, the wearing of medical masks or FFP2 masks has been mandatory since January 2021. 


The obligation for employers to provide their employees with medical masks or FFP2 masks only exists under certain conditions: If no other technical or organizational protective measures are possible in the company, for example, maintaining the safety distance of 1.5 meters or low room occupancy or protective devices in the form of partitions. The obligation also exists if a hazard due to increased aerosol emission is to be expected in the case of physically strenuous activities.


If an employer can already offer protection against Corona through these organisational and technical measures, there is in any case no legal obligation to provide masks. 


If, on the other hand, there is an obligation to provide them, the employer must give his employees FFP2 masks or medical masks, and in sufficient numbers. These masks must therefore be medical devices in accordance with the Medical Devices Directive 93/42/EEC. Only these fulfil the mask obligation according to the new Corona occupational health and safety regulations. Employers are also obliged to instruct their employees on how to put on and take off the respiratory protection masks in order to avoid contamination of the hands or the mask.


To whom does the Corona conditional home office obligation apply?


The new Corona Occupational Health and Safety Ordinance has been in force since 27 January 2021, initially limited until 15 March 2021. In addition to measures such as distance regulations and the obligation to wear medical masks, the legislator now also includes the compulsory home office as a measure against the spread of the pandemic. The obligation to work from home is to apply in any case in the case of"office work or comparable activities" and if this is not impossible for "compelling operational reasons". 


Employers are rightly very uncertain about this vague wording. 

 

Office work or comparable activities" are still quite easy to define. This refers to all work that does not necessarily involve a personal presence at the workplace. This means activities that can also be carried out from home using IT and other means of communication.

 

However, the obligation to work from home only applies if there are no "compelling operational reasons" for not doing so. The Federal Ministry of Labour itself has published some information on this. For example, "compelling operational reasons" stand in the way of the implementation of home office if this would lead to a significant impairment of the operational process. This may be the case, for example, if the processing of mail, incoming and outgoing goods, repair and maintenance tasks (e.g. IT service), janitorial services or emergency services are not ensured in order to maintain operations. Even if employees handle sensitive data, it must be possible to ensure in the home office that this data can be adequately protected.

 

However, the employer's reference to a lack of IT infrastructure alone should not constitute a "compelling operational reason". According to the Federal Ministry of Labour: "Technical or organisational reasons, such as the unavailability of required IT equipment, necessary changes in the work organisation or insufficient qualification of the affected employees can usually only be cited temporarily until the reason for prevention has been eliminated.

 

Ultimately, employers are therefore obliged by the Corona Occupational Health and Safety Ordinance to offer home office proactively. If they do not do so, they must be able to explain why working from a home office is not possible. If employers do not comply with these requirements, they may face fines of up to EUR 30,000, claims for damages by employees cannot be ruled out and there is also the risk of bad press.

 

In order to minimise these risks, employers should document their risk assessment, and the works council should also be involved. The advantages and disadvantages of temporary work in a home office should be weighed up.


Carnival and Fasching are cancelled - And still off work on Rosenmontag?

In the Rhineland, it has been a part of life for many employees for years: The work-free Rosenmontag as an additional day off, granted by the employer. Due to Corona, however, the big carnival events are cancelled and private celebrations are also out of the question. Therefore, the question arises: Will the work-free Rose Monday also be cancelled or are employees entitled to a paid day off as in previous years?


Legal basis: Betriebliche Übung

The question of the legal basis is quickly clarified: Since it is only a regional customary day and not a public holiday, there is no entitlement to continued payment of remuneration on Shrove Monday according to the Continuation of Remuneration Act. It is also not a holiday and time off work is generally not regulated in collective agreements, employment contracts or company agreements. 


In most cases, the only legal basis left is the so-called company practice. A claim based on company practice arises if the employer, through uniform and repeated conduct, creates a legitimate expectation among employees that they will also be granted the benefit or advantage in the future. If the leave of absence was granted over a period of at least three years without reservation, the prerequisites for a claim based on company practice are generally met. 


What does Corona change?

Legally, Corona does not change the company practice in the first place. The fact that carnival events are cancelled this year does not change the entitlement to a work-free Rose Monday. This is because the day off is usually not granted for a specific purpose and is not made dependent on employees actually celebrating carnival. 

It is possible that the labour courts will apply a different assessment standard than in previous years due to the special features of the Corona pandemic. It could therefore be that an employment tribunal interprets the company practice narrowly and rejects a claim due to the exceptional situation. However, this is by no means certain.

As an employer, what can I generally do to prevent an undesirable company practice from arising?

In order to prevent the emergence of a company practice, the employer can grant the day off every year anew and expressly reserve the right to order it every year. Under these circumstances, no corresponding trust has arisen among the employees. If the day off is not ordered again in that year, the employees are not entitled to it. Such an express reservation can also prevent other claims that may arise from a company practice. These are, for example, claims to Christmas bonuses, holiday pay or other remuneration payments.

The right drafting of the contract can also prevent the emergence of a company practice. This can be done, for example, by including a so-called double written form clause in the employment contract. The company practice leads to a tacit amendment of the employment contract. Since the company practice only takes place through conclusive conduct, it cannot comply with the requirements of a double written form clause. The employment contract is therefore not effectively amended and the employee is not entitled to the Monday off or to a remuneration payment.


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