In the case underlying the decision of the Labour Court Kiel dated 27 June 2022 the claimant, who had been vaccinated against COVID-19 three times, travelled to the Dominican Republic during her holiday January/February 2022. Before her departure, the Robert Koch Institute (RKI) has declared the holiday region a high-risk area. On the day of the claimant’s departure the incidence in the Dominican Republic was 377.7 while the incidence figures published in Germany was significantly higher at 878.9. About a week after the employee’s return, the incidence in the holiday destination dropped to 72.5, whereas the incidence figures in Germany increased to 1,465.4. Due to the positive test result after her return, the employee submitted a certificate of incapacity for work (AUB) to her employer, which the defendant refused to recognize and did not pay any remuneration during the specified period. The defendant argued that the claimant had mentioned to her that she was well. Due to the absence of symptoms, the employee was fit for work. Furthermore, the illness was self-inflicted due to the trip to a high-risk area.
The Labour Court Kiel has fully upheld the claim for continued payment of remuneration. In the court’s opinion, an employee is also unfit to work if he presents a positive corona test without symptoms and cannot perform his work from her home. The high evidential value of an AUB was not shaken by the claimant’s information that she was well. Nor can a claim for continued payment of remuneration be ruled out due to the quarantine ordered against the claimant.
Further, the court was also of the opinion that it was not the incapacity to work was not the claimant’s fault within the meaning of Sec. 3 (1) sent. 1 EFZG. Such fault requires a gross violation of the self-interest of a responsible person. However, since the incidence figures in the holiday region were not significantly higher than the incidence figures in the place of residence and work or the Federal Republic of Germany, the fault of the claimant was rejected. In the opinion of the Labour Court Kiel a trip to a high-risk region in these cases does not go beyond the general risk of life.
Compensation claims under Sec. 56 (1) sent. 4 German Infection Protection Act (ifSG) were denied due to a lack of applicability from a valuation point of view.
Due to the fundamental importance of the decision, the appeal to the Reginal Labour Court has been permitted. The decision is not yet legally binding and is only available as a press release.
My practical tip:
Employers are not always obliged to continued remuneration payments in the event of self-inflicted illnesses for an employee. An employee is culpable in the sense of the law on continued payment of remuneration if he or she substantially violates the behavior to be expected of a reasonable person in his or her own interest. Even if the category of a high-risk region was abolished when the “Fifth Amendment Ordinance to the Coronavirus Entry Ordinance” came into force on 1 June 2022, a new version of the regulation may not be ruled out considering increasing infection figures. Thus, the question of culpability, whether illnesses from COVID-19 after a journey to a high-risk region are not considered self-inflicted due to a lower incidence in the same period at the place of residence and work or in Germany, would arise again.
It remains to be seen whether the decision of the Labour Court Kiel will stand up to the appeal to the Regional Labour Court and whether the legal opinion will uphold that employees are also incapable of work in the case of asymptomatic courses of COVID-19. This would be of particular significance if work cannot be performed from the home office during this period and illnesses from COVID-19 are confirmed as not self-inflicted after a trip to a high-risk region, due to lower incidence figures in the same period at the place of residence and work in Germany.