Author Kira Laufs

Various labor law changes will come into force with the new year. We provide an overview of the eight most important adjustments and innovations.

1. Recording of working hours: Does my employer have to record my working hours?

In its judgment of September 13.09.2022, XNUMX, the Federal Labor Court (BAG) decided that companies are legally obliged to record the working hours of their employees. The core statement of the BAG is: All employers must record the duration of the working hours, the break times and the overtime of all employees. Precise specifications on how the time recording should be implemented have not yet been made.

Because there is currently no specific legal regulation, employers are currently entitled to some leeway when it comes to time recording. For example, you can decide for yourself whether this should be done electronically or manually. The works council does not have a right of initiative to introduce an electronic time recording system, but it does have a right of co-determination in the design of the system.

🚩 Personal to-do? none!

2. Long-term sickness: Do my holiday entitlements expire if I remain unable to work?

Previously, if the inability to work persisted, the holiday entitlement expired 15 months after the year in which a person fell ill.

The European Court of Justice (ECJ) has confirmed this regulation in principle, but explained that companies have a so-called obligation to cooperate and to inform. If the employees worked during the vacation year before they became unable to work due to illness or were completely disabled, the vacation only expires if the employer has complied with the notification obligation in good time. Employers must therefore enable employees to actually take their vacation before they are absent.

🚩 Personal to-do? none!

3. Certificate of incapacity for work: Do I need the yellow note if I'm ill?

Employees are still obliged to inform their employers about their incapacity to work due to illness. However, the obligation to present the certificate of incapacity for work does not apply. The yellow notes are a thing of the past.

From January 2023, the statutory health insurance funds will instead be informed electronically by the doctors about the periods of incapacity to work. The health insurance companies provide the certificates of incapacity for work electronically so that the employer can call up this data after notification by the employee. However, there is a transitional period for medical practices that do not yet have the appropriate technology.

🚩 Personal to-do? As before, there is still an obligation to inform the employer immediately about an illness. In some medical practices that have not yet switched to digital, the yellow slips can still be issued because there is a transitional period.

4. Voluntary inflation compensation premium: Am I entitled to 3.000 euros?

Between October 26, 2022 and December 31, 2024, companies can pay their employees a so-called inflation compensation bonus of up to 3.000 euros, free of tax and social security contributions. Important: The inflation compensation premium is a voluntary benefit provided by the company, to which there is no legal entitlement. The payment must go beyond the obligation to pay. It is therefore not allowed to withhold bonus or Christmas bonus payments and pay an inflation compensation premium instead.

🚩 Personal to-do? None, because the companies arrange this payment.

5. What happens to my holiday entitlement if I have to go into quarantine?

Basically, if you fall ill while on vacation, the days on which vacation and illness coincide will not be counted towards your annual vacation. Does this also apply if employees did not fall ill during the vacation period but were in an ordered quarantine? In general, the BAG seems to be sticking to its previous case law, which rejects impairments of vacation time that are not caused by illness. For possible cases up to September 16.09.2022, XNUMX, this would mean that the holiday entitlement would be lost with a quarantine.

For cases since September 17.9.2022, XNUMX, it is clear that quarantine days will not be deducted from vacation.

🚩 Personal to-do? In the event of a quarantine, this must be reported to the employer so that the vacation days do not expire.

6. Evidence Act: What information belongs in my employment contract?

The new Verification Act of August 1, 2022 expands and supplements the catalog of contractual conditions to be verified. The aim of the law is that employees receive written information about all essential content of the employment relationship. Among others, the following points are added:

• End date or duration of a fixed-term employment relationship
• duration of the probationary period
• Composition and amount of wages including overtime pay

Also new are information requirements on the dismissal protection procedure. In addition to the procedure to be followed, they also include:

• notice periods
• Deadline for bringing an action for protection against unfair dismissal
• Reference to the written form requirement

What is also new is that different deadlines are set for the provision of the individual proof content and violations of the law can be punished with a fine.

🚩 Personal to-do? Read contracts and ask for changes if necessary.

7. Whistleblower Protection Act: How are whistleblowers protected?

On December 16, 2022, the Bundestag passed the Whistleblower Protection Act. As soon as the Federal Council has approved the law, it will probably come into force in spring 2023. The basis for the regulation is the EU Whistleblower Directive, i.e. the protection of those people who perceive and report grievances in their own company. The aim of the Whistleblower Protection Act is to enable anonymous reports in companies with more than 50 employees without the whistleblower having to reckon with disadvantages. Companies with fewer than 50 employees are not affected by the Whistleblower Protection Act.

In order to fulfill the purpose of the law, there will be a reversal of the burden of proof. This means that if employers take adverse measures against whistleblowers, they must prove that they were not taken because of the information provided, but for another reason.

🚩 Personal to-do? None, employers have a duty here.

8. Supply Chain Due Diligence Act: What do companies need to know about their suppliers?

The Supply Chain Due Diligence Act came into force at the beginning of the year. This obliges companies based in Germany to check and document all direct suppliers for compliance with human rights and environmental due diligence. Violations are subject to sanctions and fines. The law initially applies to large companies with at least 3.000 employees. From January 1, 2024, companies with at least 1.000 employees will be affected.

🚩 Personal to-do? None, it is one of the company's tasks to set up appropriate systems for recording.

With its decision of today (decision of April 27.04.2022th, 1, Az. 2649 BvR 21/16.03.2022), the Federal Constitutional Court surprisingly declared the corona-related facility-related vaccination requirement that has been in force since March XNUMXth, XNUMX to be constitutional.
 
According to § 20 a IfSG, people who work in certain areas of the health care system have had to provide proof of vaccination against the coronavirus or a recovered status since March 15th. Even those who cannot be vaccinated for health reasons must prove this accordingly.
 
The constitutional complaint filed against this by individuals has now been rejected by the BVerfG.
 
The institution- and company-related obligation to provide evidence regulated in § 20a IfSG encroaches on the physical integrity protected by Art. 2 Para. 2 Sentence 1 GG. However, the intervention is constitutionally justified.
 
In justification, the BVerfG states, among other things, verbatim:

• “Measured against this, the legislature is pursuing the legitimate purpose of protecting vulnerable people from infection with the SARS-CoV-2 coronavirus with the provision attacked here. His assumption that there is a significant risk for important objects to be protected, which requires legislative action, is based on sufficiently reliable factual knowledge.
• "The obligation introduced in § 20a IfSG until December 31, 2022, in particular to prove a COVID-19 vaccination or a recovery from the COVID-19 disease, serves to protect public health and the as special groups of people assessed as vulnerable to COVID-19 disease"

You can find the corresponding link to the ruling here.

 On March 16.03.2022, XNUMX, the BAG published in its press release the tenor of an interesting decision with regard to holding works council elections in the form of postal votes. 

According to Section 19 (1) BetrVG, a works council election is ineffective if essential regulations on the right to vote, eligibility or the election procedure have been violated, unless the violation could not change or influence the election result. Section 24 of the Ordinance on the Implementation of the Works Constitution Act WO regulates the cases in which the Electoral Board must allow postal voting. If the election does not meet the requirements of § 24 WO, the election can be contested and ultimately lead to ineffectiveness. 

• The case decided by the BAG concerned a works council election at a Volkswagen AG plant in Hanover. In the works council election held in April 2018, the electoral board decided to vote in writing for the employees of all production sites outside the closed factory premises. 

• Three of these business premises are located directly adjacent to the fenced factory premises. 

• After the results of the election were announced, nine employees who were entitled to vote contested the election on the grounds that the postal vote was not allowed to be decided for all of the business premises outside the closed factory premises. 

With reference to Section 24 (3) WO, the BAG stated that the electoral board can only decide to vote in writing for parts of the company and very small companies that are geographically far away from the main company. However, there can be no question of a spatially large distance if the parts of the company are located adjacent to the factory premises. 

Generally speaking, postal voting is an exception requiring justification under the election regulations. The principle is that voting is done by personally submitting the ballot papers. With in-person voting, election manipulation can be much more effectively prevented.

Postal votes for works council elections according to § 24 WO are only possible in the following “exceptional cases”: 

In the event of an absence from the company - A distinction is made between three cases: 

• Absence for "personal" reasons: If the employee entitled to vote is absent from the company, e.g. vacation. In accordance with Section 24 (1) WO, postal voting is only possible at the request of the employee. 

• Eligible voters who are known to the electoral board 

1. at the time of the election according to the nature of their employment relationship, in particular those employed in the field or with telework and those who work from home, or 
2. from the issuing of the election declaration to the time of the election for other reasons, in particular in the event of suspension of employment or incapacity to work, are unlikely to be present in the company. 
   
   This regulation also includes people who are on parental leave, for example. 

• Geographically remote part of the business or small business: 

The electoral board can decide to vote in writing (postal voting) for parts of the business and very small businesses if they are far away from the main business, but belong to the main business under works constitution law. 

For the geographically large distance, it must be determined whether, if the works council elections were properly carried out, a separate polling station would have to be set up for the part of the company or the micro-company in order to give the employees there a reasonable polling station 

way to give them the opportunity to cast their vote in person. If this is the case, such a polling station can be replaced by written voting. 

In the current works council elections, many electoral boards tend to “generously” allow postal votes because of Corona. In view of the BAG's decision, electoral boards should always carefully check the requirements for postal voting. 

On 14.01.2022 has #Federal Labor Court published its reasons for the decision made on October 13.10.2021, 615. According to this, in the case of a state-ordered company closure, there is no case of an operational risk to be borne by the employer in accordance with § XNUMX BGB.

In detail, this means the following:

In principle, according to the case law of #BAG the employer that #operationalriskbecause he runs the business, organizes the operational processes, bears responsibility and receives the income (BAG 08.02.1957/338/55 - AZR XNUMX/XNUMX).

The employer must therefore be responsible if he cannot employ the employee, be it due to a lack of raw materials, defective machines or software errors.

The most important consequence for employees is that the employer still has to pay the salary.

According to the BAG, however, the situation is different if the company is closed due to an order issued by the state.

A distinction should be made as follows:

➡️ If the closure is the employer's own decision, for example to counteract the absence of customers or a sharp drop in sales, then it is a question of
an autonomous decision of the employer. Accordingly, the employer would face the operational risk with the result that the salaries of the employees would continue to be paid.

➡️ However, if the temporary closure is due to an official order as part of general measures to combat the pandemic and for reasons of civil protection, then the operational risk does not apply. Accordingly, the employer's obligation to continue to pay wages does not apply if the company is closed to protect the population from serious and fatal illnesses as a result of SARS-CoV-2 infections.