Vacations in a risk area – quarantine as “additional leave at the employer’s expense”?

Created by Kerstin Weckert | |  Labor Law

Anyone entering Germany from a Corona risk area must currently undergo a 14-day quarantine according to all federal states’ legal provisions. This is particularly relevant in the current holiday season, when employers are wondering how to proceed if employees have spent their holidays in a risk area.

1.    Is the employer entitled to ask about the holiday destination?

How and where an employee spends his vacation is generally his private matter which does not have to be disclosed to the employer. However, in the current pandemic situation, there are good reasons for the question about the holiday destination. On the one hand, the employer has an obligation towards the rest of the staff to protect them from dangers at work – including, for example, a potentially infected colleague. Furthermore, he must be able to decide whether he may re-employ the employee who has gone on holiday after his return, especially since employment in the workplace may violate the quarantine obligation. It is irrelevant to which country the employee actually travels and such fact is therefore probably not covered by the right to ask questions. The question is rather limited to whether the employee was in a risk area according to the Robert Koch Institute’s definitions.

2.    Is there a wage entitlement during quarantine?

During officially required quarantine after a journey to a risk area, the employer is not allowed to work at his workplace; therefore, there is the question as to whether the employee can also demand his salary for the time in quarantine.

This is not a problem if employer and employee agree for the work to be performed from home.

If the employee enters a country that is already classified as a risk area before the start of the journey, he/she is responsible for a subsequent quarantine obligation or for not returning in due time. To the extent Art. 616 sentence 1 BGB (German Civil Code) is not already excluded due to a collective bargaining or employment contract, the employee is therefore not entitled to wage payment. This also applies if the employee has been infected with COVID-19 at the holiday destination and has become ill.

It has not been clarified whether the employer must continue to pay the employer’s wages according to Art. 616 sentence 1 BGB if the destination is not yet classified as a risk area at the start of the journey, but only during the course of the holiday. Here, too, the employee’s fault could be assumed in individual cases due to the Federal Foreign Office’s general warning against unnecessary travel abroad and the fact that currently any country can quickly become a risk area. This would have the consequence that there would be no obligation to pay wages. Even if no fault can be assumed, the requirements of the norm are probably not relevant. A "relatively insignificant period of time" pursuant to Art. 616 sentence 1 BGB is usually understood to include only a few days. A 14-day quarantine is likely to significantly exceed this short period; therefore, even employees who have to go into quarantine through no fault of their own are very likely not entitled to continued payment of their wages. In such case, a payment obligation, if any, might arise – depending on the circumstances of the individual case – in case of an actual illness.

3.    Is the employee entitled to compensation?

For the duration of the officially ordered quarantine after returning from a risk area, Art. 56 IfSG (Infection Protection Act) provides for the employee’s compensation in an amount equal to his/her loss of earnings. It remains to be seen whether the authorities will also grant compensation if an employee deliberately enters a risk area and deliberately accepts the risk of quarantine. In such a case, it would be unfair to grant compensation from public funds. Since the employer is responsible to pay the compensation and is only reimbursed by the authorities upon application, the employer is well advised to first discuss the matter with the authorities and clarify whether or not compensation is granted to the employee. If there is no compensation claim, the employee does not have to be paid any money.

4.    May the employee be given a written warning for travelling to the risk area?

It is questionable whether an employee may be warned for travelling to a risk area if he cannot go to work due to a quarantine obligation and if he is not able to perform his work in his home office. It is generally up to the employee to decide how he or she spends his or her free time and where he or she goes on vacations; therefore, a warning is usually not permissible.

At least in those cases where quarantine is deliberately accepted and the employee cannot attend important business meetings that have already been fixed before the start of the leave, a warning may be justified. The circumstances of the individual case are decisive in this respect.

5.    Recommendation for action

In particular in light of the fact that the current pandemic is an absolute exceptional situation and there is no settled case law, no generalized statements can be made about the legal situation. An individual, case-by-case assessment is therefore particularly important.

However, employers are advised to inform their staff in advance about the quarantine measures when travelling to a risk area. It should also be made clear that in the event of an officially required quarantine, no wages are paid if the work cannot be done from the home office. Employers should also consult with the authorities as to whether the employee concerned is entitled to such a claim at all before making any compensation payments. If this is not the case, the employer is not obliged to pay wages. Against this background, quarantine can therefore hardly be described as "additional leave at the employer's expense".