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Corona crisis: Labor rights' FAQ

The pandemic doesn't mean that our rights as workers just fade away. Contact your union if wages are not paid or if there are illegitimate lay-offs!

Corona-FAQ

Can my boss simply stop paying my wage because of the Corona situation?

No, in principle your boss bears the risk and thus also the wage costs even in the case of unexpected disruptions to the business that occur through no fault of their own, including closure of the business as ordered by a third-party authority (§ 615 BGB).

Can my boss just send me home?

Your boss is categorically not allowed to force you as an employee to take "compulsory leave of absence" against your will because you are entitled to employment on the basis of your employment contract (§§ 611, 611a BGB). Your boss bears the economic risk in the form of unprofitable employment (§ 615 (3) BGB). The same applies to the reduction of overtime. In addition, your boss may not simply debit your working time account with negative hours. For any leave of absence solicited by your boss, make sure that a mutually agreed and paid time off will be arranged. This entitles the employee to continued wage payments.

Check this out: Inquiries regarding the application for compensation in connection with a quarantine ordered by a district health authority in the context of the coronavirus pandemic in accordance with §56 of the Infection Protection Act should be sent by e-mail to the Senate Department of Finance: Entschaedigung@senfin.berlin.de

Additionally the following may be relevant if you have been banned from work by the authorities due to Corona: Independently of this, the Protection Against Infection Act ("Infektionsschutzgesetz") provides the legal basis for your employer to raise a claim for "compensation for loss of earnings" ("Verdienstausfallentschädigung") for any worker who has been banned from working because authorities have deemed them "a shedder or any person who is suspected of being contagious or is suspected of being ill or is otherwise a carrier of pathogens" (§ 56 Protection Against Infection Act (IfSG)).In order to ensure that workers receive their money, your boss is obliged to pay compensation in advance for a maximum period of six weeks. After this the authority pays the compensation directly to you as an employee. If your boss does not pay in advance, for example because they refuse to do so, you can contact the state office/the state authority directly with your claim for compensation.

If workers do fall ill during quarantine, they will continue to receive continued wage payments ("Lohnfortzahlung im Krankheitsfall") and then (after 6 weeks) sickness pay ("Krankengeld") from the health insurance fund.

In principle, your boss owes you remuneration if you are kept from working for a relatively short time due to a reason outside your own responsibility (§ 616 (1) BGB). According to current case law, this applies for a period of up to six weeks (BGH v. 30.11.1978, III ZR 43/77).

Legal basis: §§ 615 and 616 BGB, Entgeltfortzahlungsgesetz, §56 Infektionsschutzgesetz (IFSG)

I'm afraid of getting infected or infecting others - do I have a right to work from home?

This depends on the specific situation:

1) The mere fear of catching the corona virus outside your home is not enough to allow you to stay away from work. Many companies have regulations governing working from home, so it's definitely worth checking to see whether these apply to you. In companies with a works council or staff representatives, agreements can be made between them and the company.

2) If you suspect that you have been infected with the corona virus, the legal situation is different. Unless otherwise specified in your collective bargaining agreement or employment contract, this may represent a so-called temporary personal reason for prevention ("vorübergehenden persönlichen Verhinderungsgrund") (§ 616 S.1 BGB): You will still receive your pay even if you cannot work. If, for example,  a visit to the doctor becomes necessary and if this can only take place during working hours, this is deemed to be a reason for prevention. You will then have the doctor or other authorities you visited to confirm in writing that there was a medical indication for the examination. You are not obliged to tell your boss the exact reason for the visit to the doctor - i.e. the illness to be clarified.

From March onwards, there are extra regulations allowing doctors to issue a certificate of incapacity for work for up to seven days after taking your medical history by telephone and send it to the patient by post: see here. These regulations are currently valid until 04.05.2020, see here. For the time from 19.04.2020 onwards there was an attempt to suspend this regulation - "apparently, the great pressure from the employers' side has also played a decisive role here" - however this attempt was unsuccessful and crushed on 20.04.2020.

3) If you have symptoms of illness and are therefore unable to work, you have the right to stay away from work on the basis of your incapaciy for work. This applies not only to Corona, but in general. Your employer must be notified immediately of your incapacity for work and all other regulations that apply in the event of incapacity for work in the company must also be observed. Unless stated otherwise in your collective labor agreement, your individual labor contract or by an agreement between your boss and the works council, you will have to hand in a medical certificate - i.e. a certificate of incapacity for work (AU) - to your boss no later than the third day of incapacity to work. Workers who are incapacitated for work are in principle entitled to continued remuneration from their employer for a period of six weeks and then to sickness benefit from the health insurance fund.

Can my boss just fire me because of the Corona situation?

No, the normal rules governing termination of employment still apply - this means:

1) If a probation period ("Probezeit") has been agreed upon in the labor contract and you are still in your probation period, your employment may be terminated with 2 weeks notice.

2) If you have been employed for more than 6 months at the company, the notice period is 4 weeks (and termination has to be socially justified, if at least 10 full-time employees work there, which unfortunately may be the case due to the economic situation regarding corona).
* Legal basis: § 622 BGB, § 23 Abs. 1 S. 3 KSchG

3) In any case, termination has to take written form, otherwise it's simply not valid - some employers might make a mistake here so be sure to continue to offer your work and request your wage!
* Legal basis: § 623 BGB

Can my boss order company holidays at short notice because of the Corona crisis?

No. Legally speaking, a company is entitled to plan 60 percent of annual vacation as company holidays for its employees. But this has to be done in advance and is not possible in view of the corona situation.

Can I stay away from work or do I have a claim to home office if I have to look after my child because of the Corona situation (daycare closures etc.)?

Employees are generally obliged to make an effort to look after an alternative way of daycare for their children. Should this prove difficult, try to find an arrangement with your boss to see if it is possible to work from home. If the child is healthy, but the day care centre is closed due to the situation around Corona and you have no other possibility to find day care for your child, then this counts as a personal prevention through no fault of your own in the sense of § 616 BGB as you have to take care of your parental custody obligations (§ 1626 (1) BGB) - unless otherwise regulated by collective agreement or in the individual employment contract. This means that you are entitled to paid leave of absence for a very short period of time, but during this time you must find alternative day care to restore your ability to work.

There is also a special regulation for the case of working custodians who suffer a loss of earnings because they have to look after their children themselves due to the closure of childcare facilities and schools ordered by the authorities. Since an amendment to the law of 27.05.2020, compensation of up to 67 percent of the net loss of earnings can be paid for a period of up to 10 weeks, see here.

If your child is ill and you and the child are covered by public health insurance, you are entitled to sickness benefit for 10 days per child under 12 years of age (up to a maximum of 25 days in total) in accordance with § 45 SGB V. The number of days is doubled for single parents. Sickness benefit means that on these days you are entitled to unpaid leave of absence and receive the lower sickness benefit ("Krankengeld") paid by your health insurance fund instead of your salary. This entitlement does not apply if the child has private health insurance with another parent.

My boss wants to introduce short-time work ("Kurzarbeit") - what do I have to know?

Whether or not short-time work compensation can be claimed depends on various factors that are regulated in §§ 95 - 98 SGB III, including the following.

According to § 96, there must be a "substantial loss of working hours":

  • which is due to economic reasons or an unavoidable event,
  • which is temporary and unavoidable,
  • at least one third of the employees in the holding concerned in the entitlement period (calendar month) receive a pay reduction of more than 10% due to the loss of work.

According to § 98, the "personal requirements" must be fulfilled on the part of the persons concerned:

  • employment subject to compulsory insurance,
  • the employment relationship may not have been terminated or dissolved by an agreement to terminate
  • the employee must not be excluded from receiving short-time work compensation.

This means marginally employed ("geringfügig beschäftigte") workers (mini-jobs) are not eligible for short-time work compensation.

Short-time work cannot be ordered by one party without involving others. According to § 87, Subsection 1, No. 3, BetrVG, short-time work is subject to co-determination, i.e. the works council ("Betriebsrat") must be involved in the decision. If there is no such representation, the plans of the company management must be approved by the employees eligible for short-time work.

The short-time work compensation for employees with children amounts to 67% of the net pay difference. Workers without children receive 60% of the net pay difference. According to a new regulations decided upon on 22 April 2020, this percentage rises to 77/70% after four months and to 87/80% after seven months until 31 December 2020 for people who work 50% less due to short-term work.

For the changes in March 2020, look here.

What to do if my boss wants me to work but do not provide me safety measures (such as gloves, disinfectant, mask etc.)?

First of all: Your boss must inform you about the risk of infection in your work context and how you can protect yourself from the corona virus. The general principles of occupational health and safety apply (§ 4 Occupational Health and Safety Act. Your boss has a duty of care and, according to § 618 BGB, must do everything possible to ensure that you can do your work without risk. Your boss has the right to give instructions, i.e. they can oblige you to wear a mouthguard, wash your hands regularly or disinfect them to prevent the corona virus from spreading.

If your boss does not fulfill their care obligations, you may have a right to refuse to do your work ("Leistungsverweigerungsrecht"). However, this must be proportionate, e.g. it does not apply if there is only a lack of general information, but if there is a concrete risk of infection (e.g. working with an infected colleague). Always consult with your workplace committee, your works council or your union before acting.

I am a freelancer - what rights do I have with regard to loss of income?

Check this out: Inquiries regarding the application for compensation in connection with a quarantine ordered by a district health authority in the context of the coronavirus pandemic in accordance with §56 of the Infection Protection Act should be sent by e-mail to the Senate Department of Finance: Entschaedigung@senfin.berlin.de

As a self-employed person you are not entitled to employee rights such as wage payments due to delays not caused by you (§615/616 BGB), continued remuneration in case of illness or paid leave of absence for sick children. However, you have the right to compensation if you are affected by quarantine. The amount depends on your last annual income according to your tax assessment. The details are regulated by the Infection Protection Act (IfSG) in § 56 Compensation. The competent authority will pay you the money. If the closure of the business is threatening your existence, you can also apply for compensation for the uncovered business expenses.

Follow this link, for more information on how to claim your money.

I'm a union member having problems at work - whom can I turn to?

As a member your first go to would be our sections: https://berlin.fau.org/strukturen

In case you need further support, you can contact our labor rights counseling: faub-beratung (at) fau.org

Which decisions were taken by Berlin's senate?

Restrictions apply to some areas of public life and some businesses - you can find out exactly which areas are affected here (the English version is not updated as quickly as the German version, so up-to-date information has to be translated from German).

There are high fees for violating the rules, see here.

The measures include hygiene rules (§§ 1-2). They also define as a duty: "(1) Every person is required to keep physical social contact with other people to a minimum. (2) A minimum distance of 1.5 metres is to be maintained in contacts with other people. Sentence 1 shall not apply if physical proximity of less than 1.5 metres cannot be avoided under the circumstances [...]".

When using local public transport and in various other businesses, a textile mouth-nose cover must be worn - a list on the contexts where this applies can be found here. (§4).

The validity of the above restrictions has now been extended to 24 October 2020.

The decisions also included a repressive (!) obligation to provide proof of identity (§ 17), which has however been taken back on April 2nd.

 

other Languages

You can find a translation of this FAQ to Farsi here.

 

Last updated: 07/07/2020, 10:38

This FAQ is continuously expanded - feedback to faub-kontakt (at) fau.org

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