For this reason, we would like to provide specific information on how to deal with this situation, when segregation is obligatory and what effects this has on remuneration. However, the focus of our article is on specific practical advice to keep the administrative burden as low as possible.
1. Behavior in case of symptoms and positive test (segregation).
- In the event of a positive rapid test (citizen test or self-test), employees are obliged - even without an official order - to go into self-isolation until clarification by a PCR test. The same applies if they have typical cold symptoms. However, PCR tests are often no longer available or are no longer carried out in the case of positive rapid tests. In this case, the positive rapid test must be regarded as accurate, with the consequence that isolation must be carried out up to the end described under point 3.
- Self-isolation is also required in the case of a positive PCR test. Here, too, no (additional) official order is required.
- However, if there is an official isolation order, this must of course also be complied with.
- If a doctor has not (additionally) confirmed the inability to work and if it is possible to work from home, employees are obliged to carry out their work from home despite self-isolation. Employers should expressly point this out.
- Employees are also obliged to immediately provide their employers with proof of the reasons for self-isolation.
2. Behavior as a contact person (quarantine)
- As soon as employees have knowledge of a positive test of a person who lives with them in one household, they are also obliged to immediately go into quarantine.
- The same applies if another person with whom the employee had contact at a distance of less than 1.5m, for a duration of at least 10 minutes without wearing a mask, in the period of two days prior to a positive test, has tested positive.
- Here, too, an additional - not mandatory - official quarantine order must of course also be complied with.
- Note: In contrast to household contact persons, who are obligated to segregate themselves, there is no explicit obligation here. Rather, segregation "shall" only take place. Nevertheless, we recommend that both cases are handled uniformly within the company and that it is communicated accordingly to the employees that contact persons must also be quarantined at home and are not allowed to enter the workplace. Even if there is no such regulation, in our view the employee has the right to go into quarantine in any case, since in doing so he is complying with a legal requirement (he should go into quarantine).
- The above does not apply in the following cases:
- Booster vaccination of the employee already completed.
- Combination of vaccination and recovery, provided positive PCR test at least 28 days ago (then unlimited in time)
- Second vaccination maximum 90 days and at least 15 days ago
- Recovery (after positive PCR test), provided positive PCR test at least 28 and at most 90 days ago
- Practical advice: In deviation from the statutory regulation, a ban on activity in the workplace and thus a (workplace-related) restriction on contact can also be expressly ordered by the employer in the aforementioned cases for reasons of the best possible health protection. For possible consequences, see the practical advice under 5.
- Unless the inability to work has been confirmed by a doctor and it is possible to work from home, employees are obliged to perform their duties from home despite the quarantine.
- In all cases of quarantine as a contact person, employees are also obliged to immediately notify their employer of the contact person who was tested positive, the date of the positive test and, in the case the contact person is not a household member, the date of contact. An e-mail is sufficient for this purpose.
Practical advice: Employees must be expressly informed in advance of the aforementioned obligations - i.e. both the quarantine and notification obligations. It should also be emphasized that failure to comply with these obligations and providing false information regarding contacts and other reasons for a quarantine can lead to consequences under labor law, including extraordinary termination.
3. End of isolation/quarantine
The isolation or quarantine is of course limited in time. On the one hand, there are maximum limits, but on the other hand, so-called free testing is also possible.
In case of positive test
- Automatic end 10 days after the first appearance of symptoms or after the (first) positive test, provided there are no more symptoms.
- Prior end possible with negative PCR test or citizen test ("Bürgertest") on the seventh day of isolation (the start day is to be counted); free testing by self-test is not possible.
As a household contact person
- Automatic end 10 days after the first appearance of symptoms or after the (first) positive test of household member (Important: if new positive cases occur in other household members during the 10 days, the period starts again).
- prior end possible with negative PCR test or citizen test on seventh day of isolation (start day to be counted); Note: free testing by self-testing is possible here according to legal regulation.
As other contact person
- No binding regulation for the end of segregation, since there is no obligation to segregate.
- Practical advice: Orientation on regulations for household contact persons (see above).
4. Remuneration during isolation and quarantine
- If work in the home office is possible and takes place, employees continue to receive their normal remuneration.
- If there is medical evidence of inability for work, continued payment of remuneration will be made in accordance with the Continued Payment of Remuneration Act ("Entgeltfortzahlungsgesetz").
- In other cases, employees are no longer entitled to remuneration. Instead, employees are entitled to compensation in accordance with the Infection Protection Act (sec. 56 Infektionsschutzgesetz). The application therefor must be made by the employer.
- NOTE: In our view, such a claim for compensation (if home office is not possible) also exists in cases of segregation as a contact person not belonging to the household. However, there is no clear case law on this yet. As a result, if in this scenario the segregation is based on a requirement by the employer, there is a risk that the entitlement to remuneration will continue to exist even if it is not possible to work from home.
- In the following cases of quarantine as a contact person, there is no entitlement to compensation (Important: This does not apply in the case of segregation as a person who has tested positive)
- Quarantine of an unvaccinated or only once vaccinated employee.
- In the case of unboostered employees (no third vaccination for booster), it is controversial whether there is a claim for compensation. There are good reasons to believe that this will be denied in any event in the future.
- Practical advice: If the employer orders - beyond the legal requirements - a duty of segregation (from the workplace) even if the legal exceptions exist (see above under 2.) and if work in the home office is not possible, no claim for compensation arises, but the duty of compensation continues to exist (see under 5. Practical advice)
5. Practical advice
- First of all, the legally requirements shown under 1. and 2. - combined with the reference to the obligation to provide truthful information - must be communicated to all employees.
- Employers should also consider whether, for reasons of infection control, they should go beyond what is required by law. This would be advisable in any case if it is possible to work from home. Such a decision should also be communicated to the workforce, together with the information that these requirements go beyond the mandatory legal requirements.
- Employees should also be made aware of the consequences of segregation and quarantine for their entitlement to remuneration (cf. under 4.).
- In addition, reference should be made - if operationally possible - to the obligation to work in the home office during quarantine and segregation, provided that no inability for work is certified. Furthermore, this should be repeated again if employees indicate segregation or quarantine.
- Problematic from the company's point of view are above all those cases and companies where working in a home office is not or only partially conceivable. Two decisions must be made here, weighing up all aspects:
- Should the legal requirements only be met or - especially to avoid chains of infection within the company - should they be over-fulfilled, with the risk paying part of the remuneration for employees not being able to work (from home)?
- Should employees be referred to the right to compensation (and its possible elimination in the shown cases) or should - for reasons of administrative simplification - remuneration always continue to be paid? To answer that question, the administrative work of an application for compensation payment by the employer, who is obligated to do so (including the explanation of the reasons for quarantine and segregation) and the (as explained) legally complicated differentiation between the individual cases, must be weighed against the costs of continued payment of remuneration even if it is impossible to work in the home office. A general answer is not possible. Rather, it is largely dependent on the individual company.
We hope to give you a good overview of the above-mentioned topic and the complex legal situation. If you have any questions on the above-mentioned topic and on the covid management in your company, please do not hesitate to contact our colleagues in our offices in Berlin, Düsseldorf, Munich and Cologne by telephone or e-mail.