Should I go to work on vacation?

German Trade Union Confederation

Even if it is currently about restraint: Some employees take a trip for vacation or family visits. When traveling in Corona times, it is important not only to minimize the risks to your own health, but also the effects on the employment relationship.

DGB / kasto / 12rf.com

What applies if employees travel to "Corona risk areas"? What does a trip to a risk area mean for the job and the return to work? Can my employer refuse a vacation because of the travel destination? What if I have to be quarantined after the trip? Can my employer warn me or even give me notice? Answers to the most important questions.

What is a corona risk area?

Corona risk areas are states or regions outside the Federal Republic of Germany for which there is an increased risk of infection with the SARS-CoV-2 virus.

The Federal Ministry of Health, the Foreign Office and the Federal Ministry of the Interior, Building and Home Affairs jointly determine the classification as a risk area. The decisive factor is the number of infected people per 100,000 inhabitants, but also test capacities, tests carried out per inhabitant and hygiene regulations. How the classification as a risk area is actually carried out and which states or regions are currently included can be found on the website of the Robert Koch Institute at

https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Risikogebiete_neu.html

can be read.

Can the employer influence my decision as to where I spend my vacation or does he have the right to know where I have spent my vacation?

Employees generally have no obligation to inform their employers about their vacation plans. Employers also have no right to request information about vacation - in advance or afterwards. In principle, private life remains a matter for the employees. In some cases, it is argued that employers may request general information on whether employees have traveled to a risk area. The opinion is not convincing: a trip to a risk area does not necessarily lead to a quarantine (for example, if it involves visiting close relatives for a few days), nor is there a high probability of infection. However, when working in geriatric care facilities or in hospitals, potential infections can have particularly serious effects, so employers are definitely more interested in information here. However, it is questionable whether this leads to employees having to report on their trips. After all, the potential risk of infection in Germany is comparable to that in many of the countries defined as risk areas.

The employer may only reject the vacation request if - in terms of time - operational issues (order situation) or vacation requests from other employees oppose it. But that does not apply to the travel destination. That is entirely up to the employee. Even a rejection on the grounds that “traveling is too dangerous anyway” is not enough.

What should I watch out for when I travel to a country that has been designated as a risk area?

Some of the countries require a negative corona test result (so-called PCR test) to be presented upon entry, based on a test that must be carried out shortly before departure. In any case, please inform yourself about the requirements of the country in which you are traveling. You should also observe the hygiene regulations and distance rules applicable in the respective country. You can minimize the risk of infection by acting carefully.

After returning from a risk area, is there a risk that I will be quarantined?

According to the current (as of December 10, 2020) relevant regulations in almost all federal states, people who enter Germany from a risk area are fundamentally obliged to immediately go into a ten-day quarantine. In concrete terms, this means that you are not allowed to leave your own apartment or house and not receive any visitors. In addition, before arriving in Germany, travelers will have to register electronically using the electronic registration and information system set up by the Robert Koch Institute at the web address einreiseanmeldung.de and have proof of registration with them upon arrival. The travel and contact details will be forwarded to the responsible health authority in Germany, which can then get in touch with the returnee. The data transmitted to the health department will be automatically deleted 14 days after entry.

Can I shorten the quarantine if I have a negative test result?

The quarantine can be shortened with a negative test. However, the test may not be carried out before the fifth day after entry and must meet the requirements of the Robert Koch Institute (https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Tests.html). It is currently no longer possible to avoid quarantine with a test that has already been carried out abroad or directly upon arrival at the airport. Allow at least five days (plus waiting time for the test result).

Are there any exceptions to the quarantine requirement?

There are exceptions to the quarantine and entry requirements for several groups of people. This applies to all those who were only passing through in the risk area, for visits to close relatives up to 72 hours, for business trips, border traffic up to 24 hours, trips for study and training purposes. Exceptions also apply to certain professional groups, such as medical staff (doctors and nurses), cross-border police forces, employees in road and rail, air and ship transport. Further exceptions are possible at the state level. The websites of the governments of individual federal states provide more detailed information on who and under what conditions the exceptions apply.

A general exception to the quarantine requirement applies in North Rhine-Westphalia. There, the general quarantine obligation for travelers returning was suspended as a result of a decision by the Higher Administrative Court of Münster on November 20, 2020 (file number 13 B 1770 / 20.NE). The background to this was the lawsuit brought by a vacationer who claimed that quarantine after his return was inappropriate because the number of infections at the travel destination was lower than at home. Since November 30, returnees from North Rhine-Westphalia no longer have to automatically go to quarantine at home.

Can my employer refuse to pay wages if, for example, I have spent my vacation in the risk area and then have to go into quarantine?

In principle, employees do not lose their right to remuneration if they are temporarily prevented from performing work through no fault of their own (Section 616 BGB). However, it is controversial whether and, if so, for how long this regulation applies to those who have to be quarantined after returning from a risk area. In addition, the entitlement to temporary incapacity is in many cases permissibly excluded in numerous collective bargaining and employment contracts and does not apply to many employees.

Employees who have made an agreement with their employer that allows them to work from home can also use this option during the quarantine. Anyone who continues to work despite the quarantine also receives the payment as normal.

Those who are unable to work due to the quarantine order and suffer loss of earnings as a result have the right to state compensation. This compensation is valid for a maximum of six weeks in the amount of the lost wages. The employer advances this payment for the duration of the quarantine and requests reimbursement from the competent authority. However, special rules have recently applied to quarantine after traveling to risk areas (see next point).

If the employer does not pay the compensation, you can submit an application to the competent authority within 12 months of the end of the quarantine (Section 56 (11) IfSG). The competent authority then grants the compensation to the employee himself / herself.

Am I entitled to compensation if I have to be quarantined after a trip to the risk area?

In this case, the principle applied for a long time that employees who suffer loss of earnings as a result of an officially ordered quarantine are entitled to compensation. Under the so-called Third Civil Protection Act, the legislature decided with effect from November 19, 2020 that compensation will remain excluded if the quarantine could have been avoided by not starting the trip. The prerequisite for this is that the travel destination was classified as a risk area at the time of departure and the trip was avoidable, i.e. there were no compelling reasons for the trip that could not be postponed. The latter could include urgent medical treatment, official appointments, or family emergencies such as a funeral. The exclusion of compensation does not apply if the risk area is classified as a risk area only after departure.

The regulation does not apply to old cases, i.e. trips before the changes to the law (before November 18, 2020). However, some authorities responsible for the compensation payment consider the new regulation only to clarify the previously applicable legal situation and refuse to pay compensation for trips before November 18, 2020. It remains to be seen how the courts will decide this legal issue.

Can my employer refuse to work if I return from the risk area?

Employees returning from high-risk areas and being in quarantine can only offer their work properly if they can work from home. They are not allowed to enter their workplace. Consequently, the employer does not have to accept the work that is offered to him in disregard of the quarantine rules and is generally not obliged to pay the wages. But if you are not under quarantine after a vacation trip, you can also be employed. If the employer does not accept your work even though you have properly offered it, he still has to pay the remuneration.

So that the employer can refuse to work, he or she must have concrete indications of a risk of infection, for example because the employee shows symptoms of illness. Special operational or individual contractual regulations that regulate this question separately and apply are also conceivable.

Can my employer ask me to get tested for Corona - for example because I am returning from a risk area?

In some companies there are special company regulations that regulate the obligation to test. In certain areas in which a potential infection would have particularly serious effects, such as in hospitals, regular testing is provided as part of an occupational health and safety concept. Apart from these cases, employers cannot generally order a test out of mere caution and employees do not have to obey this order. If the employer does not accept your work without a test, even though you have properly offered it, he still has to pay the remuneration.

However, if the employer has concrete indications that you may be infected, for example because you have symptoms of illness, they can refuse to work for you as long as you do not provide a medical certificate. This follows from the fact that the employer must generally take suitable measures to protect other employees from the spread of diseases in the company.

What happens if I have to be quarantined during my vacation? Can I then request that my leave be granted?

This question has not yet been finally clarified. Basically: vacation is for relaxation. The quarantine obligation not to leave one's own apartment, however, massively disrupts recovery. It is also clear that in the event of illness during the vacation, which leads to an incapacity for work determined by the doctor, the vacation is not used up, but has to be granted. The courts will have to clarify whether the quarantine case during the vacation should be dealt with accordingly.

What happens if I actually get COVID-19?

Every employee who is unable to work as a result of an illness - and this can be assumed in the case of the lung disease COVID-19 - must report the incapacity to work to the employer immediately and a medical certificate at the latest after three days, but in some companies even earlier submit.

If you are infected with the SARS-CoV-2 virus, as in any other case of illness, you are usually entitled to continued payment of wages for up to six weeks. This also applies if you are quarantined for this time. However, if the quarantine began before the infection and you fall ill during the 14-day quarantine, the compensation according to the Infection Protection Act has priority and is extended by the duration of the illness.

Under certain circumstances, employees can lose their entitlement to continued payment of wages in the event of illness if they are to blame for their illness. This presupposes, however, that they have exposed themselves frivolously or even deliberately to risks in a way that seriously violates “the behavior that can be expected from an intelligent person in their own interest” (according to the labor courts). A trip to a risk area alone does not speak in favor of such a violation. If you adhere to the recommended rules of conduct to minimize the risk of infection while on vacation in the risk area and still fall ill, you cannot be refused payment of wages.

Ultimately, however, the final evaluation depends on the individual case; it can turn out differently depending on the activity and circumstances of the individual case. It is still unclear what standards the labor courts will apply in this particular situation, as the relevant cases have not yet been decided.

Can the employer take legal action against me because I was in the risk area and then have to be quarantined? Can I be terminated or given a warning?

Basically: A warning or termination is only possible if you have violated an obligation under the employment contract. It is controversial whether a contractual secondary obligation to consider the interests of the employer can be violated by taking a vacation trip, after the end of which there may be a risk of quarantine. In principle, employees are free to lead their private lives, and travel to risk areas is not prohibited. They fulfill their duty of consideration for the interests of employers by following the recommended rules of conduct to minimize the risk of infection while on vacation.

Ultimately, however, the final evaluation depends on the individual case; it can turn out differently depending on the activity and circumstances of the individual case. As far as we know, there have not yet been any court rulings on this subject that would bring legal clarity.

What should I do if I have further questions on this topic?

Members of the DGB unions have the right to free advice and support from their union and receive free legal protection. Our unions support you in solving your problem out of court and, if necessary, in court.