Data Protection Law
Q: Can a company ask employees and visitors to let the company know if they think they may have been exposed to the virus?
A: Yes. The company can request that it be informed. However, the employer/business cannot force employees, visitors or other individuals to inform the company. Nor can employers force their staff to see a doctor. The company can, however, ask all employees/visitors to answer certain questions (see below).
Generally, questions on health status are considered special categories of personal data that have to be processed with higher caution (article 9 GDPR). The GDPR and German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG; FDPA) permit the processing of such special categories of personal data under certain strict requirements. Coronavirus as such can, for example, be considered a “serious cross-border threat to health” (article 9.2(h) GDPR or article 22.1(c) FDPA) and measures to protect employees may include measures to protect the health of employees (article 9.2(i) GDPR or article 22.1(b) FDPA). However, this does not mean that all measures can be justified on the grounds of “coronavirus”: Measures must, above all, be necessary and reasonable, and, in general, the data must be processed by doctors or other suitably qualified personnel.
Q: Can a company ask employees and visitors to let the company know if they are infected by the coronavirus?
A: Yes. Generally, the employer does not have the right to know what kind of illness an employee has (and for individuals other than staff, the threshold is even higher). However, with coronavirus being highly contagious, employees’ fiduciary duty under employment law requires them, at the very least, to inform their employer if they are infected with the coronavirus in situations where the employee had contact with other employees. Where a works council exists, such reporting obligations could also be regulated under employment agreements.
Q: Can a company ask employees and visitors to answer the following questions before entering company premises: (i) have you stayed in a high-risk region?; (ii) have you had any contact with someone who has tested positive for COVID-19?; and (iii) do you have any symptoms of COVID-19 (such as a headache, runny nose, cough or fever)?
A: Generally yes. In terms of data protection law, such questions can be asked on the basis of article 22.1.1(c) FDPA, provided that it is necessary “for protection against serious cross-border health risks.” Alternatively/additionally, articles 9.2(b) and 9.2(i) GDPR could serve as a legal basis if and because the protection of employees against infection is a duty of the employer under the Occupational Health and Safety Act (Arbeitsschutzgesetz – ArbSchG). Given its spread, coronavirus can be categorized as a “serious cross-border threa[t] to health” within the meaning of article 9.2(i) GDPR. However, it is always important to consider whether such measures are necessary.
In addition, visitors may be required to answer the questionnaire as this also serves to protect employees. “Yes” responses can, to the extent that this is authorized, be further processed until there is full clarity about the visitor’s health status. On the other hand, it is only necessary to document the process and not the questionnaire responses if they are all “No.” Employees and visitors should be informed of this, as required under the GDPR. If a works council exists, co-determination rights (Mitbestimmungsrechte) need to be considered.
Q : Does a company have to inform its employees that a case of coronavirus has occurred in the company?
A: Yes. In particular if the employees are at risk of infection, e.g., if the occurrence is at the same company site or within the same team. This follows from the employer’s duty of care toward their employees. A similar requirement may exist toward business partners under civil law fiduciary duties. However, in general, the company must not reveal the identity of the affected individual or further details of the infection.
Q: Can the employer enter additional data (e.g., home phone numbers, private cell phone numbers or email addresses) into their HR systems to be able to contact employees who are in quarantine?
A: Yes. However, it should be up to the employees to decide whether they want to give their private cell phone number to the employer as this data is particularly sensitive owing to the possibility of it being retained on a permanent basis by the employer.
Q: Can a business screen visitors for coronavirus or coronavirus-like symptoms?
A: Generally no, unless the visitors agree to screening. However, if a visitor refuses to be screened, the business can deny access to its premises on the basis of its right of residence.
Q: Does a company have to inform the public authorities if an employee is infected by coronavirus?
A: No. Only doctors and persons with equivalent medical status have a reporting duty under the German Protection against Infection Act (Infektionsschutzgesetz – IFSG) and the German Coronavirus Ordinance (CoronaVVo).
Please see more FAQ on data protection law and the coronavirus on the website of the Baden-Württemberg data protection supervisory authority and on EU level the Statement of the EDPB Chair on the processing of personal data in the context of the COVID-19 outbreak.
Employment Law
Q: Can an employer request that employees be checked for fever, or require employees to submit to medical examination or get a vaccination (if one exists)?
A: No. Employees are not obliged to accept their employer’s request that they be checked for fever, be medically examined or get a vaccination. If the employer wants to check whether an employee has a fever, the employee must give their consent. Employers must bear in mind that such consent will in most cases be invalid if employees feel under pressure and do not give consent freely. If a works council exists, co-determination rights (Mitbestimmungsrechte) need to be considered as well.
Q: Can an employer send employees home as a precautionary measure even if they do not show any symptoms of infection?
A: Generally no. The employer has to allow its employees to work, provided that, in particular, they do not show any symptoms of infection and are capable of work. However, the employer can, of course, decide to temporarily close down the whole company site as a precautionary measure and send all employees home. In this case, the employer needs to continue to pay employees’ salaries. The employer cannot request that employees use up their vacation days or work overtime.
Q: Can an employer send employees home if they show symptoms such as a cough, runny nose or cold?
A: Yes. However, the employer can send an employee home only if they show obvious symptoms and the employer thinks the employee is incapable of work. This right arises from the employer’s duty of care toward the sick employee as well as toward the other employees.
Q: Does an employer have to continue to pay employees?
A: Yes. If the employer closes down the company site and sends all employees home, they have to continue to pay employees in accordance with their employment contracts. If the employer sends an employee home because they are sick or show obvious symptoms of illness, the employer must continue to pay full remuneration to the employee for a period of six weeks in accordance with the provisions of the German Continued Remuneration Act (Entgeltfortzahlungsgesetz – EFZG). If an employee is under official quarantine, the employer must continue to pay the employee for a period of six weeks in accordance with section 56 of the German Protection against Infection Act (IFSG). However, upon request, the employer will be reimbursed by the competent authority for any amounts paid out to the self-isolated employees. The deadline to submit an application for reimbursement is three months.
Q: Can employers require employees to work overtime, as otherwise urgent work cannot be performed due to sickness?
A: Yes. However, if overtime work is required, the provisions of the German Working Time Act (Arbeitszeitgesetz – ArbZG) need to be taken into consideration. If a works council exists, co-determination rights (Mitbestimmungsrechte) need to be considered as well.
Q: Can employees stay at home or work from home if they fear infection on their way to work or at work?
A: No. being infected with an illness is considered a general hazard of life, be it at work, on the way to work or during leisure time. However, if it is technically possible for the employee to work from home and both parties agree to this, then the employee may do so. If an employee refuses to work for fear of infection without any reasonable risk of infection, the employer may consider disciplinary action and sanctions.
Q: Can an employer request employees to go on business trips?
A: Generally yes. However, if there is an official travel warning for a certain country or region from the Federal Foreign Office (Auswärtiges Amt), the employee can refuse to go on a business trip to the respective country/region without risk of any disciplinary measures or sanctions. The employer should regularly monitor the official travel warnings on www.auswaertiges-amt.de
Q: Does an employer have to provide disinfectants?
A: Generally yes. The employer needs to ensure that the risk of infection is as low as possible. However, this also very much depends on the nature of the business and what the risks of infection are, e.g., whether or not there is customer contact, whether or not the business has dealings with persons from infected countries/regions. In any case, the general principles of occupational health and safety apply. To be on the safe side, employers should provide disinfectants at their premises.
Q: Can employees refuse to comply with safety and protective measures, such as rules on hygiene?
A: No. The employer has a right to issue orders (Direktionsrecht) and can request employees to comply with certain safety and protective measures, e.g., to wear a mask, or regularly wash and disinfect their hands. If an employee refuses to comply with these measures, the employer may consider disciplinary action or sanctions. If a works council exist, co-determination rights (Mitbestimmungsrechte) need to be considered.
Commercial Law
Q: Can a business deny individuals access to its property (e.g., bar or restaurant) or to events (e.g., theater, cinema or soccer match) if they show symptoms of coronavirus?
A: Yes. This arises from the business’ right of residence.
Q: Is coronavirus an event of force majeure that entitles companies to stop performing agreements and/or terminate agreements? What if public authorities order the cancellation of certain services/events?
A: Yes, but only in certain situations and on a case-by-case basis. Companies may be released from their duty to perform under an agreement and/or terminate the agreement on the grounds of “impossibility of performance” (section 275 German Civil Code) or under contractual force majeure clauses. The other party may also has the right to terminate the agreement. In case of “impossibility of performance” or force majeure, the other party is relieved of its payment obligations.
Whether or not performance is impossible should be decided case by case and will also depend on the contractually agreed provisions. Generally, “impossibility of performance” or force majeure requires objective circumstances that prevent the affected party from carrying out its duty to perform. A mere increase in costs or “precautionary measures” would not suffice; however, where orders from authorities (e.g., the export restriction order imposed by the Ministry of Economy and Energy or orders to cancel events with more than 1,000 participants) or sanctions are the direct reason for the non-performance, performance will likely be considered as impossible.
Companies should now check if and to what extent they have obligations under applicable law or a specific agreement, whether or not the agreement can or must be terminated, or whether or not the other party to the agreement must be informed of the force majeure event or otherwise.
For a more global perspective, see also:
"Force Majeure and the Novel Coronavirus"and for France: "France - Coronavirus (COVID-19) and economic downturn: What impacts on the continuation of business relationships?"
Q: Does coronavirus give a company a right to amend its agreements, e.g., make changes to the service/product, pricing or delivery times?
A: Yes, under certain circumstances and on a case-by-case basis. German law grants parties to a contract the right to amend or even terminate an agreement under section 313 of the German Civil Code where “the substantial basis of the agreement has changed and the parties could not have foreseen such change.” These are situations that do not reach the level of “impossibility of performance” or force majeure (see the previous answer) and need to be determined on a case-by-case basis. There is case law on this matter – for example, a court granted the right to amend an agreement when a carnival party was canceled due to the Gulf War. If these requirements are met, either party can request changes or even terminate the agreement if such changes not possible.
Agreements cannot be amended automatically: A party must request the other party’s agreement to such amendment. There are no specific deadlines for such request; however, parties may silently waive their right if they acknowledge the extent of the changed circumstances.
One thing is for sure: The answers to the legal questions are no more black and white than the dangers posed by the coronavirus. Businesses and individuals should all have in mind that any measures taken or attempted by businesses have the same aim: protecting the health of human beings and often of those whose rights might be affected under labor & employment and data protection laws. At the same time, businesses need to ensure continuity and protect against losses or even insolvency. The war against coronavirus will, therefore, be most successful if parties are open to a “give and take” approach, respect the interests of both the business and individuals and accept this fight as a joint fight.
If you have any additional questions within your organization that you would like us to add to this blog, please email amanger@reedsmith.com or asplittgerber@reedsmith.com
Please see our other resources on the coronavirus on www.reedsmith.com
Client Alert 2020-096
