The coronavirus pandemic is turning employment law on its head. The protective measures – some of which are recommendations and others mandatory in nature – designed to contain and curtail the strain of coronavirus and respiratory disease known as COVID-19, have far-reaching consequences for all aspects of life. Schools and kindergartens have been and remain closed, as are pubs, and sports and fitness facilities. Production chains are being disrupted because parts cannot be delivered. All of this has significant implications for employment law. Working parents have to look after their children, the conditions for a functional home-office environment need to be created, and employers are already struggling to cope with the existential threat posed by losses in revenue.
The first steps should be to review and facilitate options to work from home, hold talks on possible vacation time, and consider taking advantage of the new rules on short-time employees if economic or organizational difficulties begin to emerge. Arranging unpaid leave in consultation with employees is also a good alternative in challenging times.
One thing even the worst pandemic is not going to change: employment law rules that define not only the employer’s duty of care but also the employee’s obligations under the employment contract, including during times of crisis.
An unexcused absence, for instance, may well result in a formal warning despite the coronavirus outbreak. It remains unclear whether wages will continue to be paid if employees are placed in quarantine. If it is not possible to work from home, employers can assert claims against the authority responsible for the quarantine. The same applies in the event that the authorities close businesses. In this situation, the employer is still required to continue paying wages and to make advance payments for the time being.
One reason that is often cited to justify an absence from the workplace is the need to look after children following the closure of daycare facilities. Despite the hardship this entails, the closure of daycare facilities does not qualify affected parents for continued payment of wages. Even a child falling ill – be it due to COVID-19 or something else – does not constitute exceptional circumstances from the perspective of employment law. While parents and guardians can avail themselves of legal rights to call in sick and claim for continued payment of wages in order to look after their children, they must not go beyond the scope of the legal framework in doing so.
Our view at the commercial law firm MTR Rechtsanwälte is that we are living through exceptional times with the spread of the coronavirus. The situation needs to be handled with the utmost care and sensitivity. We are ready to serve you with our expertise, including as it relates to the employment law issues touched on above. Please do not hesitate to contact us at any time for advice.