The decisive factor is, above all, where vacation was taken. The legal situation is particularly interesting for employees who are about to return from a risk area.
Will the employee be quarantined after returning from a risk area?
According to ordinances of the German federal states, persons traveling to risk areas must immediately and without being asked go into 14-day domestic quarantine upon their return to Germany. An up-to-date overview of international risk areas can be found on the website of the Robert Koch Institute.
The number of infected persons per 100,000 inhabitants is decisive for the classification as a risk area. However, testing capacities, tests carried out per inhabitant and hygiene regulations also play a role in the decision. The classification as a risk area is made jointly by the Federal Ministry of Health, the Federal Foreign Office and the Federal Ministry of the Interior, for Construction and Home Affairs.
The Robert Koch Institute constantly updates the list of designated risk areas.
If a country is subject to a travel warning issued by the Federal Foreign Office, but has not been declared a risk area within the meaning of the RKI’s criteria, the employee does not usually have to go into quarantine on the basis of country-specific regulations. A country for which a travel warning exists is not always also a risk area. Currently, however, there is always a travel warning for the risk areas defined according to the criteria of the RKI. In this case, the legal consequences for vacation returnees from a risk area apply.
If the destination country is classified as a risk area, there is an increased risk of infection there. This exists regardless of the duration and reason for the stay. Therefore, the exceptions to the quarantine obligation regulated in the respective legal ordinance are irrelevant for the existence of a risk of infection and the resulting right of the employer to suspend work performance.
The question arises whether the employer can prohibit its employees from traveling to a risk area.
The answer is clearly no, because employers may not prohibit their employees from traveling to a Corona risk area. First, this would be too great an intrusion on their personal rights, and second, while authorities advise against travel to risk areas, it is not prohibited.
But what about continued payment of wages by the employer in the event of a quarantine order?
In principle, employees have a claim against employers for continued payment of wages in the event of illness under the Continued Payment of Wages Act (“Entgeltfortzahlungsgesetz”).
However, the claim to continued payment of wages under the Continuation of Remuneration Act requires that the employee’s incapacity to work due to illness be the sole cause of the employee’s inability to work and thus the employee’s loss of work performance.
According to this, persons traveling to risk areas are required, among other things, to immediately and without being asked, upon their return to Germany
-> to contact the responsible health office
-> to go directly into domestic quarantine and
-> to “isolate” themselves there for 14 days.
An immediate return to work is therefore out of the question for holidaymakers returning from a risk area. This is particularly true in view of the fact that violations of the above provisions of infection control law can be punished with fines of up to 25,000 euros and even imprisonment of up to five years.
For the question of continued payment during quarantine, a differentiation must be made:
If the travel destination is only declared a risk area during the stay, the usual principles for continued payment of remuneration apply. If the employee is in quarantine and at the same time incapacitated for work with the Corona virus, he receives continued payment of remuneration according to the usual regulations; if he is in quarantine after returning from vacation without being ill, he is entitled to compensation according to § 56 IfSG, which is paid out via the employer.
If, on the other hand, the travel destination was already classified as a risk area before the start of the trip and it was therefore foreseeable for the employee that he or she would have to go into quarantine after returning, these claims do not exist because he or she is responsible for the absence (“fault against himself or herself”).
Contributory negligence will only not exist if the employee took his trip due to a valid reason specified in the respective state ordinance, for which the ordinance provides an exemption from the quarantine obligation, e.g. to exercise custody of a child or to care for persons in need of protection.
And what happens if the vacation destination suddenly becomes a risk area?
In the event that the vacation country traveled to by the employee is declared a risk area again only after the employee has started his trip due to a renewed increase in the number of infections, the employee has not acted culpably with his trip and would have a claim to continued payment of wages for a temporary period in accordance with Section 616 of the German Civil Code. However, Section 56 IfSG, according to which the employee has a claim for compensation for the period of quarantine, applies here. In practice, the employer makes the continued payment of wages and can have these payments reimbursed by the competent authority (Section 56 (5) IfSG).
What happens in the event of illness in domestic quarantine?
If an employee becomes ill after his or her vacation and is unable to work, he or she is generally entitled to continued payment of wages under the conditions of Section 3 (1) of the Continuation of Remuneration Act (EFZG). However, the incapacity to work due to illness must be the sole cause of the inability to work. If the employee is in quarantine, this (also) means a cause for the prevention of work. In the absence of a so-called monocausality of the illness, the employee is therefore generally not entitled to continued payment of remuneration during the quarantine.
If the employee has the option of performing his work from the home office during the quarantine period, his entitlement to payment of wages remains, of course.
If the employee does not return from his/her vacation on time, for example because he/she cannot leave on time due to infection control measures at the vacation location or because flight connections to the country in question are suspended, he/she bears the travel risk, but the employer may be obligated under Section 616 of the German Civil Code (BGB) to continue paying the remuneration for a relatively short period of time if the travel restriction was not foreseeable for the employee. However, if the employee has traveled to a risk area with his eyes open, there is no claim to remuneration under Section 616 of the German Civil Code.
Does an employer have to pay if the employee is under quarantine and home office is not an option?
Section 616 of the German Civil Code (BGB) contains a provision that could theoretically secure the employee’s claim to remuneration against his employer even in the event of a quarantine with loss of working hours.
The problem is that Section 616 of the German Civil Code (BGB) only secures the claim to remuneration for a “relatively insignificant period of time”. Whether this can also cover 14 days of a quarantine is still unclear and is not uniformly judged. If this period is deemed too long by the courts, the entitlement will lapse altogether.
In addition, the prevention of work must not be the fault of the employee. The question is whether the prevention of work as a result of a foreseeable quarantine after returning from a vacation abroad in a risk area is the fault of the employee, so that the claim under Section 616 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) no longer applies.
Here, the circumstances in the individual case are decisive. In particular, if the employee complied with all recommended behavioral measures during the vacation, there should be no fault.
How can employers take preventive action?
Employers could ask their employees about the specific vacation destination before they take their vacation and document this temporarily.
In principle, employers are not allowed to ask their employees about their travel destinations; however, these principles are probably suspended in a pandemic situation such as the current one. That is, currently, employers have the right to know from their employees the destination of their planned vacations because of their duty of care to the workforce.
After all, the employer must be able to exclude the possibility that employees, after returning from a risk area on vacation, arbitrarily disregard the quarantine order that applies to them and, by returning to work prematurely, expose their colleagues to the risk of infection with the Corona virus.
The employer is also advised to inform and educate the workforce by posting notices about the consequences of traveling to risk areas.