COVID-19 and refusal to work in Germany

Frank Lehmann, MBA Finance / Steuerfachwirt, ORDECONTA GmbH Berlin, frank@ordeconta.com

According to Section 3 of the German Occupational Safety and Health Act, the employer is obliged to take all measures appropriate to the circumstances of the company to protect the employee from infection. The health and safety regulations of the German Federal Ministry of Labor and Social Affairs are constantly being revised and all employers are obliged to inform themselves about them as soon as possible. As soon as an employer is unsure which protective measures need to be taken for his specific company, he can contact the German Federal Institute for Occupational Safety and Health (BAuA).

The employer is responsible for the operational health care, but not for the public health care.

Employee’s refusal to work

If the employer takes the necessary protective measures and informs the employee about it, he can demand the work performance from him. The mere fear of infection does not release the employee from the duty to work.

Exception: the employee belongs to a risk group. In this case, the employee should provide a medical certificate and the employer and employee must work together to find a solution. Usually, they then agree on a sick leave.

If the employee refuses to work despite everything, the employer can issue a warning or even notice.

Employee’s duty to provide information

The employer is entitled to request information from the employee as to whether he has been in a risk area in the near future. If the employee refuses to provide general information as to whether he or she is at an increased risk of infection, the employer can consider not employing the employee. However, it is still unclear whether in this case the employee would still be entitled to continued remuneration.

Home office workplace

In this context, a home office means a permanent workplace in the home environment of the employee. Home office cannot be ordered unilaterally by the employer, but always requires an agreement between the employee and the employer.

If the employer has justified suspicion that the employee is not fulfilling his work duties in the home office, the employer can issue a warning or dismiss him. If there is justified doubt, the employer can, for example, hire a detective to monitor the employee in question, as the employer will suffer financial loss if the employee receives wages without performing any work.