Entitlement to Remuneration in the Event of Employer-Initiated Quarantine

In a ruling dated November 24, 2020 (Docket No. 5 Ca 2057/20), the Dortmund Labor Court decided that employees retain their entitlement to remuneration if they complete a two-week quarantine at the employer's request. This applies at least if the employee had not previously knowingly entered a Corona risk area.

Facts

The plaintiff was in a self-catering vacation apartment in Tyrol in Austria in the period between March 11, 2020 and March 15, 2020. After his return, the defendant employer informed the plaintiff that he should stay at home for two weeks and go into quarantine, as Tyrol had been listed as a risk area by the Robert Koch Institute (RKI) on March 13, 2020. The plaintiff complied with the defendant's request. The defendant then charged the working hours lost due to the quarantine with corresponding positive balances of the plaintiff's working time account.

In his lawsuit, the plaintiff is seeking to have the deducted amount credited back to his working time account. In this regard, he argues that the quarantine of two weeks was not ordered by the authorities, but was imposed solely by the employer. In addition, on March 11, 2020, when he went to Tyrol, the RKI had not yet classified it as a risk area. The defendant had also not taken into account that he was staying in his vacation apartment, so that an increased risk of infection did not exist anyway.

The defendant is of the opinion that the health protection of other employees was the primary concern. The high-risk situation did not allow it to make any other discretionary decision than to impose the two-week quarantine. The dangers of traveling to Tyrol had been known for weeks before March 13, 2020. The plaintiff's behavior was therefore at least grossly negligent.

The Dortmund Labor Court upheld the claim for restitution of the lost working hours. The defendant has lodged an appeal against the judgment with the Regional Court of Hamm (Docket No. 10 Sa 53/21).

Reasons for decision

The court based its decision in particular on the operational risk doctrine pursuant to Sec. 615 Sentence 3 BGB (German Civil Code). According to this doctrine, employees can demand the agreed remuneration even if the work is cancelled and the employer bears the risk of the loss of work.

In the case of a quarantine order, the employer would only be released from the obligation to pay according to the principles of statutory risk distribution if the competent health authority orders the quarantine. If, on the other hand, an employer decides on his own initiative to send an employee into "quarantine" in order to protect the rest of the workforce, he bears the risk of remuneration in accordance with the principles of the doctrine of business risk. This applies even if the disruption - as in the case of the coronavirus - does not originate from a sphere of risk that can be influenced by the employer.

This could only be different if the employee went to a risk area "almost with his eyes open", contrary to a classification by the RKI. However, such a constellation did not exist, since on March 11, 2020, the start of the trip to Tyrol, discussions about stays and trips outside the Federal Republic of Germany had already been held, but the RKI had not yet classified Tyrol as a risk area at that time. In addition, it should also be taken into account in these cases that a self-catering vacation apartment offers significantly less risk of infection than, for example, a stay in a heavily frequented hotel or inn.

Notes for practice

With the continued payment of wages during quarantine measures, the decision concerns a topic that is currently gaining renewed relevance. The German government only recently determined that, as of March 30, 2020, all air travelers to Germany must undergo a recognized Corona test before taking their flight. If the test is positive, travel will be refused and vacationers will have to go into quarantine while still at their vacation destination. Here, the question of continued payment of wages will arise in particular, as regularly working in a home office is not a tangible option either.

Compensation according to Section 56 of the German Infection Protection Act ("IfSG") will not be granted in these cases, as there is no quarantine order from a domestic authority. The claim for continued payment of wages against the employer pursuant to Section 616 BGB requires that the employee is not responsible for the (temporary) prevention of performance. In this respect, a distinction is made: If the employee knowingly travels to a risk area, a subsequent quarantine is regularly considered to be self-inflicted; continued payment of wages is then ruled out. If, on the other hand, the destination was not designated as a risk area at the start of the trip (as is currently the case in Mallorca), employers may be obliged to continue paying wages without having a claim for compensation against the authorities. The risk of lost work is then borne by them.

Whether a quarantine-related loss of work as a result of the vacation trip justifies other consequences under the employment contract, up to and including termination, is still largely unresolved. In this respect, too, it is likely to be decisive to what extent the employee is accused of increased culpability, for example because he traveled to a risk area in an avoidable manner.