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    Managing HR Through COVID-19
    A Practical Guide for Multinational Employers

    Prepared by Mayer Brown

    As at May 5, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19. It covers:

    1. Good Practice Guidance giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in Germany.

    This publication has been written by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

     

    CONTACTS: Mayer Brown  

    Guido Zeppenfeld  |  Partner  |  gzeppenfeld@mayerbrown.com  |  +49 697 941 1701

    Hagen Köckeritz |  Partner  |  hkoeckeritz@mayerbrown.com | +49 697 941 2323

     

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO”) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identify the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required.
      • Identify employees with transferable skills so that these essential positions can always be temporarily filled.
      • Consider flexible work patterns, such as employees working from home.
      • Identify those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

     

    Country Overview

    As at May 5, 2020

    1. What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with coronavirus in the workplace include:

    • Taking all actions required to ensure the health and safety of employees at work to the extent such actions are possible and can reasonably be expected of the employer, i.e., obligation under the Health and Safety at Work Act (Arbeitsschutzgesetz – “ArbSchG”), the Workplace Ordinance (Arbeitsstättenverordnung – “ArbStättV”), Sec. 618 Civil Code (Bürgerliches Gesetzbuch – “BGB”), and general duty of care in accordance with Sec. 242 BGB;
    • Taking additional care of special groups of employees who enjoy stronger protection, e.g., based on the Social Code IX (Sozialgesetzbuch IX – “SGB IX”) protecting disabled employees, and the Maternity Protection Act (Mutterschutzgesetz – “MuSchG”);
    • Complying with special obligations under the Infection Protection Act (Infektionsschutzgesetz – “IfSG”) if business activity is related to specific types of care for larger numbers of individuals;
    • Complying with obligations under the contract of employment, the BGB, and the various acts and ordinances governing the legal relationship between employer and employee (e.g., continuing to pay wages, ensuring the employee works within the terms of the contract of employment);

    Complying with the information and co-determination rights of works councils in accordance with the Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”).

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    As in most other countries, there is no express legal obligation in Germany on an employer to specifically have a workplace COVID-19 response plan. However, ArbSchG, ArbStätt, and BGB require all employers in Germany to take all actions required to ensure the health and safety of employees at work to the extent such actions are possible and can reasonably be expected of the employer. Developing and implementing a general pandemic plan (Pandemieplan), that would also apply to COVID-19, would be a significant and highly recommended step to address the potential risks and safety issues associated with COVID-19.

    We recommend that employers prepare a detailed plan (if one is not already in place) and implement it. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak. A plan should deal with preparations to prevent an outbreak, what happens during the outbreak, and the steps to be taken after the outbreak. Both workplace health and safety issues and business continuity issues should be covered.

    The plan may be part of and/or refinement of a broader plan already developed. In businesses that have a works council (Betriebsrat), the implementation of a pandemic plan is subject to co-determination of the works council, as it touches topics such as health and safety at work (Sec. 87 para. 1 no. 7 BetrVG), general behavior in the workplace (Sec. 87 para. 1 no. 1 BetrVG), working time aspects (Sec. 87 para. 1 no. 2 and 3 BetrVG), and IT-related aspects in case of home office work (Sec. 87 para. 1 no. 6 BetrVG).

    3. What should a workplace COVID-19 response plan cover?

    The material scope of a pandemic plan should cover all measures that are necessary in connection with the occurrence of a pandemic to protect against the impairment of workers’ health. Specific rules of conduct should reduce the risk of infection. A pandemic plan could be structured following the different stages of preparing for, responding to, or following up to an outbreak. The German Association of Occupational Accident Insurance Funds (Deutsche Gesetzliche Unfallversicherung e.V.) has issued a booklet setting out 10 tips for occupational pandemic planning: (https://publikationen.dguv.de/widgets/pdf/download/article/2054).

    General and medical information regarding COVID-19 can be found on the following websites:

    • Robert-Koch-Institute (rki.de)
    • Federal Institute for Risk Assessment (Bundesinstitut für Risikobewertung)
      (bfr.bund.de)
    • Federal Center for Health Education (Bundeszentrale für gesundheitliche Aufklärung) (bzga.de)
    • Federal Institute for Occupational Safety and Health (Bundesanstalt für Arbeitsschutz und Arbeitsmedizin) (baua.de)

    For general guidance on the contents of a workplace COVID-19 response plan, please review the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes, but it depends. If an employee is personally infected with COVID-19 and keeping them away from the workplace is reasonably necessary to protect public health, then the employer may direct the employee not to attend at the workplace.

    If other employees in the workplace are infected and may have spread the virus and potentially contaminated parts of or the entire workplace so that the safety of the rest of the workforce can no longer be ensured, sending parts of the workforce home may be appropriate. However, before such a significant decision is taken, public health authorities should be consulted, which are then likely to temporarily shut down parts of the workplace and impose a quarantine on employees who may have been exposed to the virus. Depending on the type of business, the public health authority may also decide to temporarily shut down the entire operation (e.g., daycare centers, schools, businesses with a large number of walk-in customers).

    5. Can I direct an employee to see a doctor?

    No, there is no general right to direct an employee to see a doctor. If an employee shows symptoms in the workplace and appears to be incapable for work, the employer should nevertheless send them to the (works) doctor and consider releasing them from work until the symptoms are cleared up. This applies not only to COVID-19 infection, but also to other infectious diseases. Every infection puts colleagues at risk, so even mild symptoms should be clarified. In the current situation, it is very likely that employees will follow an employer’s request to see a doctor voluntarily, not only in their own interest, but also due to potential social pressure from others in the workplace.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes, as a general rule, but an employer may be able to recoup part of the compensation and benefits paid during an outbreak.

    In the event of official closure.  If a company or business is closed down because of COVID-19 on the instructions of the authorities, the employer is, in principle, still obliged to pay wages – although staff cannot be employed for reasons outside of the control of the employer. The employer bears the operational risk in this case. In situations where neither the employee nor the employer is responsible, employment contracts and collective agreements may provide for deviating provisions. However, such provisions may be enforceable only if formulated sufficiently clearly and explicitly.

    At the same time, the Federal Ministry of Labor and Social Affairs does not exclude the possibility of applying for short-time work compensation in such cases. In this case, part of the remuneration would be paid by the employment agency. The main prerequisite for the payment of short-time work benefits is that an “unavoidable event” leads to considerable non-productive time.

    If possible and covered by the right to issue instructions, employers may also assign employees to work at other places, including home offices.

    In the case of the isolation of workers.  If the employee is able to work in isolation (e.g., quarantine at home upon instruction of public authorities), they must do so. If not, the employer is still obliged to pay the wages for up to six weeks. However, the amounts paid out to the employee shall be reimbursed to the employer by the competent authority upon request.

    In the case of illness.  If the employee is unable to work as a result of illness, they are entitled to continued payment of remuneration.

    However, a claim to continued remuneration is only possible if the employee is not at fault for the illness. Fault can be considered, for example, if the employee has violated a travel warning issued by the Foreign Office during a private trip. At the employer’s request, the employee is obliged to provide a detailed description of the circumstances that are relevant to the development of the illness. If the employee violates these obligations to cooperate, the employer can hold back continued remuneration. In this context, the employer is entitled to ask employees returning from a private stay abroad whether they have stayed in a region at risk. The claim is regularly limited to negative information; the employee is not obliged to provide information about the exact whereabouts.

    In the case of closure of schools and day care centers.  If the employee is unable to work as a result of official closure of schools and day care centers, losses in income that employees suffer may be covered by the government for up to six weeks. The aim of the compensation scheme is to mitigate the loss of earnings suffered by working custodians of children up to the age of 12 if they have to look after their children themselves due to the closure and are therefore unable to pursue their professional activities. The prerequisite is that the persons concerned do not have access to any other reasonable care (e.g. by the other parent or emergency care in the facilities). Risk groups such as the child’s grandparents do not have to be involved in this. Loss of earnings do not exist if there are other ways of staying away from work temporarily on a paid basis, such as reducing working time credits. The compensation amounts to 67 percent of net income, will be granted for up to six weeks, and is limited to a maximum monthly amount of EUR 2,016. Payment is made by the employer, who can apply for reimbursement to the relevant state authority. The regulation does not apply to periods in which the institution would be closed anyway due to school holidays and is limited until the end of 2020.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    As a general rule, unless otherwise provided in the employment agreement, the employer’s right of direction allows the employer to determine the place of work. Assigning an employee to a certain part of an office or even a different office may also be a reasonable action that an employer can take to protect the rest of its workforce from potential infection. This may be implemented, for instance, if an employee returns from private or business travel with a marginal risk that the employee may have been exposed to infected persons and the isolation of an employee in the workplace is a precautionary measure only. It must, however, not be misused to discriminate against employees.

    If employees return from high-risk areas such as Italy or the Wuhan region in China, just isolating an employee within the office may not be sufficient. In such a case, it may be more appropriate to ask the employee to stay at home and ideally work from there until there is confirmation that the employee is not affected or a 14-day period since the employee’s return has expired and the employee is free of symptoms. If an employee does not agree to work from home or the job does not allow home office work (e.g., for production workers or medical personnel), the only choice the employer may have is to put the employee on paid leave until it is safe to return to the workplace. Despite an employer’s general right to determine the place of work, this does not include an employee’s home office. Home office work always requires an employee’s consent, be it generally given in an existing home office agreement or on an ad hoc basis in light of a COVID-19 outbreak.

    8. Can I direct my employees to report suspected cases of COVID-19?

    Yes, but it depends. If employees suffer from symptoms personally and are incapable for work, they have an obligation to report this to their employer without delay. If they are aware of others who are infected, employees are under an obligation to disclose this to the employer as well, given that an outbreak of COVID-19 would pose a significant threat to health and safety (see Sec. 15, 16 ArbSchG). However, employees cannot be directed to report any suspicions that are not based on facts.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Generally, no, but exceptions may apply. If there is a single case and immediate action was taken by the employer (in coordination with the health authorities) to isolate the infected employee and any persons that may have been exposed to them, this may not be a sufficient reason for other employees to refuse to attend work. If, on the other hand, a larger number of infections has been detected and/or the employer cannot ensure that potentially contaminated areas in the workplace have been properly disinfected, employees may in fact refuse to attend work.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    Unless employees give their express consent to such a screening in advance, it will in most cases be a violation of current data privacy laws. Even then, it is questionable whether consent can be validly given, taking into account that an employee will most likely not be permitted to access the premises without giving consent so the consent is unlikely to be voluntarily given. In our view, there is no generally applicable statutory justification based on the General Data Protection Regulations or the Federal Data Protection Act (Bundesdatenschutzgesetz – “BDSG”) that would permit the collection of such personal data. Exceptions may apply to especially sensitive businesses (e.g., food production or food servicing industry) that are subject to a statutory obligation to permanently ensure employees are healthy when performing working activities.

    CONTACTS:  Mayer Brown 

    Guido Zeppenfeld  |  Partner  |  gzeppenfeld@mayerbrown.com  |  +49 697 941 1701

    Hagen Köckeritz |  Partner  |  hkoeckeritz@mayerbrown.com | +49 697 941 2323

     

     

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

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    Related Articles

    For more information relevant to Coronavirus COVID-19, please visit our website.

     

    This publication by Mayer Brown provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.