Category: News

Different regulations for employees who are already employed and for people to be hired after March 16.03.2022, XNUMX

With regard to the prescribed procedure for employers, the law differentiates between "already employed" and new employees from March 16.03.2022, XNUMX.

For employees who are already employed, the health department decides on a ban on entry or work

Employees who were already employed before March 15.03.2022, 15.03.2022 must present the management of the practice or facility with either proof of vaccination, proof of recovery or a medical certificate of a medical contraindication to vaccination by March XNUMX, XNUMX at the latest.

However, Section 20a (2) IfSG states that there is no “automatic” ban on employment for employees who are already employed if the relevant evidence is not submitted. In such a case, the employer is obliged to contact the health department immediately and to transmit the personal data (§20a II S. 2 IfSG).

The health department then has to check measures. The health department should also take into account whether sufficient staff would be available if an entry or activity ban were imposed.

In many cases, due to the work overload, the health department will probably first - weeks/months? - don't react at all.

The health department is also required to ask those affected to provide the evidence again.

Only after appropriate action is it then the task of the health department to prohibit the employee concerned from entering the facility or working there.

Can an already employed person continue to work until the decision of the health department?

The Infection Protection Act does not say exactly whether employees who are already employed can continue to work until the decision of the health department. The question cannot be answered clearly. 

However, there is a lot to suggest that the employees concerned can or even have to continue to work until the health department issues a ban on activity or entry. 

According to several reports in the press, some health authorities have also communicated this understanding of the law in this way.

The question of the obligation to work and the right to remuneration will probably also have to be clarified by the labor courts.

No obligation to pay after a ban on entry or activity has been imposed by the health department

From the point in time of the ban on employment, the work cannot be performed if it is not possible to work from home. According to the principle "no work, no pay", this time is not to be remunerated.

Is a personal termination possible after a ban on entry or employment has been imposed?

If it were a permanent ban on entry or employment, the answer to the question would probably be "yes". However, since the law only applies until December 31.12.2022, XNUMX, according to a decision by the health department, there will only be a period of a few months to bridge while the work cannot be performed. However, in companies with more than ten full-time employees, termination is only possible as a "last resort" if the employment relationship cannot be continued in a meaningful way. This question will probably also have to be clarified by the labor courts.

Immediate employment ban for those hired after March 15.03.2022, XNUMX

For employees who are to be hired after March 15.03.2022, XNUMX, the relevant evidence must be available before the start of the activity. If such proof is missing, a separate statement of an employment ban by the health department is no longer required. Rather, the ban on employment applies directly, so that these employees may not be deployed. Consequently, there should be no claim to payment for these persons.

Violations are subject to fines

There is a risk of fines in the event of illegal employment or failure to submit the relevant evidence. This results from § 73 IfSG. The law provides for fines of up to two thousand five hundred euros, particularly in the event of violations of the obligation to provide evidence. Fines of up to EUR 25.000,00 can be imposed for serious violations of the Infection Protection Act.

The law is valid until the end of 2022

The regulation of § 20a IfSG primarily aims to increase the vaccination rate in the affected facilities and companies in the short term. The validity of the law is therefore limited to December 31.12.2022, XNUMX. 

law is in question

The Federal Constitutional Court has now received a large number of constitutional complaints against the institution-related corona vaccination requirement. It is not yet clear when a decision will be made on this. It is likely that the Federal Constitutional Court will deal with it before mid-March 2022. In view of the current situation and the mood in politics, the demands of large hospitals and health institutions as well as some state governments to postpone the entry into force of the law, there is also the possibility that the validity of the law will initially be postponed or that the law on vaccination will be repealed .”

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.

Legal Implications

In the event that an employee in Germany wants to work from abroad, the question arises as to which labor law applies. For Germany as a member state of the European Union, the Rome I Regulation (Regulation of the European Parliament and Council No. 593/2008) is relevant.

According to the Rome I Regulation, employers and employees can in principle mutually determine the law applicable to their contractual relationship (choice of law). It can be agreed that German law will continue to apply if the employee works from abroad.

Despite the choice of law, however, certain provisions of the respective local employment law that are advantageous for the employee may be mandatory for the employment relationship. According to the Rome I Regulation, the choice of law must not result in the employee being deprived of the protection afforded by the mandatory provisions of the law of the state in which or from which the employee habitually works in order to fulfill the obligations arising from the employment contract fulfill. If an employee works primarily from abroad for a German employer, German law is generally applicable to the employment relationship if the parties have made a corresponding choice of law. However, employee-protecting provisions of local law, which cannot be changed by agreement and which are more favorable for the employee than the corresponding provisions of German law, must be applied. It is therefore possible that both German and local regulations are applicable to an employment relationship, and there is a general risk that e.g. E.g. the protection against dismissal of the local law (or a certain part of this law) applies - if this law is more favorable for the employee than the corresponding German law.

In principle, an employee working from abroad can also sue the German employer abroad. In particular, according to the Brussels Ia Regulation (Regulation of the European Parliament and of the Council No. 1215/2012), the employee can sue the German employer before the competent court of the respective Member State of the European Union in which or from which the employee usually works is used to fulfill the contractual obligations. The initiation of such proceedings in the respective Member State of the European Union can only be ruled out by an effective international jurisdiction agreement, which the employee and the employer must conclude after the dispute has arisen.

In the absence of a choice of law, the applicable labor law is determined according to objective criteria as set out in the Rome I Regulation. According to this, the law of the state in which or from which the employee usually works in order to fulfill the employment contract is primarily applicable.

Implications for taxes and social security contributions

It is important for employers to check social security and tax legislation before accepting an employee's application to work from abroad.

For social insurance, the actual place of employment is usually the decisive factor in determining the applicable law. This means that remote work from abroad carries the risk that German social security law is not applicable.

For employment within the European Union, the provisions of the Ordinance on the Coordination of Social Security Systems (Regulation of the European Parliament and Council No. 883/2004) apply in Germany. In particular, an EU citizen working in another member state of the European Union is subject to the social security laws of the respective state of employment.

However, exceptions are possible under the provisions of the above-mentioned regulation on the coordination of social security systems. If an employee usually works for a German employer in two or more member states of the European Union, the social security law of the country of residence applies if the employee carries out a significant part of the activity in this country. For example, German social security law applies if an employee who regularly works from abroad (still) lives in Germany and carries out a significant part of the work in Germany. According to the provisions of the regulation on the implementation of the regulation on the coordination of social security systems (Regulation of the European Parliament and of the Council No. 987/2009), it is fundamentally necessary for the exercise of a significant part of the activity in a member state of the European Union that at least 25 percent of the activity is carried out in this country.

Outside the scope of the aforementioned European regulations, it must be checked whether there is a social security agreement between the state from which the employee wishes to work and the Federal Republic of Germany. If this is the case, the applicable law is to be determined in accordance with the provisions of this social security agreement. If there is no social security agreement, German social security law does not apply if the employee works from abroad and does not work in Germany at all.

While the place of work is usually the decisive criterion for the applicable social security law, the place of residence is relevant for the applicable income tax law.

According to German tax law, natural persons who have their place of residence or habitual abode in Germany are subject to income tax in Germany. So if an employee works exclusively from abroad and has no place of residence or habitual abode in Germany, he is not subject to income tax in Germany.

However, if the employee works partly abroad and partly in Germany and is resident in one of the two countries, this employee may be subject to limited income tax liability under German tax law, ie only with the remuneration for the activity actually carried out in Germany. In such a case, it is fundamental to determine which state has the right to tax (possibly also partially) according to the rules of the respective double taxation agreement between the Federal Republic of Germany and the other state (if there is one).

Finally, there is a general risk for the German company that working from abroad will establish a permanent establishment for tax purposes in the foreign country. In particular, an employee working from abroad may be considered a permanent representative under the rules of the foreign state. If there is a double taxation agreement between Germany and the other country, the definitions of permanent establishment and permanent representative contained therein apply. According to the double taxation agreement, a permanent representative is generally present if the employee regularly concludes contracts for the company when carrying out his work for the company abroad. If these conditions are met, the company is usually treated under the applicable double taxation treaty as if it had a permanent establishment in the respective country for all activities that the employee carries out for the company in that country. As a result, the profits attributable to the permanent representative are subject to taxation in the foreign jurisdiction. If the German tax authorities do not recognize the existence of a permanent establishment of the German company abroad, double taxation of the profits attributable to the permanent representative must also be expected.

Immigration Implications

Every EU citizen has the right to reside and work in the member states of the European Union, the other states of the European Economic Area (Iceland, Liechtenstein, Norway) and in Switzerland without any further requirements (free movement of workers). This means that an employee who is an EU citizen can work for a German employer from abroad in the area described above without any further immigration requirements.

For remote work from outside the area described above, it is essential for the German employer to check the legal situation in relation to immigration regulations and in particular to determine whether an entry visa is required and how it can be obtained and whether a residence permit and work permit are required and how they can be obtained.

Other Considerations

According to new legislation in Germany, the works council (if any) must always be involved if a company wants to introduce policies on distance and telework. Works council participation rights relate only to the content of policies on distance and telework. The works council has no right of initiative as to whether or not policies on distance and telework should be introduced. The works council can therefore

Do not force employers to implement remote and teleworking policies in the company. The decision as to whether or not to implement distance and teleworking policies is entirely up to the employer.”

We are happy that we are with Mr. Michael Veith the areas of banking and capital market law, leasing and factoring, as well as restructuring and insolvency law, were able to support them with an experienced, competent and personable colleague. Welcome!

Jens Niehl in an interview with ZDF Volle Kanne on February 17, 2020

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