As of November 23, 2022, the German Federal State of Hesse no longer requires an obligatory isolation period for persons who have tested positive for COVID-19.
In the states of Bavaria, Schleswig-Holstein, and, to a limited extent, Baden-Wüerttemberg, this has already been the case since mid-November. Rhineland-Palatinate also announced a lifting of the isolation requirement. For employers in these federal states, this means new challenges in connection with the employment of positively tested employees and their remuneration. It may also make sense to adapt company hygiene concepts. This article addresses the new regulations in detail.
Elimination of the Isolation Requirement for Persons Tested Positive and New Mask Requirements
Bavaria, Schleswig-Holstein, and Hesse have lifted the regulations on mandatory isolation altogether. Instead, persons who have tested positive for COVID-19 are required to wear at least a medical mask outside their own homes. Exceptions to the mask requirement are possible under certain conditions. Specifically for Hesse and Bavaria, a mask is not required indoors if other persons are not present. In Hesse, a mask does not have to be worn indoors if only other people who have tested positive are staying there.
In Baden-Wüerttemberg, the obligation to isolate continues to apply in principle. However, this does not apply if the infected person wears at least a medical mask as a substitute measure for isolation. A separate order is not required with regard to the mask obligation.
For Rhineland-Palatinate, the isolation requirement ended on November 26, 2022. Instead, persons tested positive for COVID-19 will now have to wear at least a medical mask in public.
In Bavaria and Baden-Wüerttemberg, a person is not considered to have tested positive under the new regulations if there is only a positive self-test. The situation is different in Schleswig-Holstein and Hesse. In these states, a positive self-test is sufficient for the application of the new regulations. This also applies in Rhineland-Palatinate.
Considerations for Dealing With Employees Who Have Tested Positive
These new regulations may present employers with renewed challenges during this stage of the pandemic. Until there is sufficient case law, it remains an open question as to whether and when employers will have to employ employees who have tested positive and continue to pay their respective wages in light of the new regulations. Here is an overview of various situations that employers might run into:
- If employees have cold symptoms and have tested positive for COVID-19, the following applies as before: employees should stay at home and take sick leave. The employers then have to continue to pay wages in accordance with the German Continuation of Remuneration Act for the period of sick leave. If employees want to come to work despite having symptoms, employers can send them home based on their duty of care, but they may have to continue paying wages depending on the individual case.
- It gets trickier for employers when employees test positive for COVID-19 but remain symptom-free. This is because in Bavaria, Baden-Württemberg, Schleswig-Holstein, Hesse, and, according to the current status in Rhineland-Palatinate, entry and activity bans for persons who have tested positive are intended only for specific facilities, including those in the medical and nursing sectors.
- If the respective employers’ facilities are not part of those sectors affected by such bans, employees who have tested positive may perform their work on-site if they are wearing masks. If an employer does not want them to work on-site—for example, out of concern for other employees—it is possible to refuse entry to company premises to the affected employees and send them home. However, since employers thereby refuse to accept the offer of work performance by the employees, employers may owe the employees’ wages in such a case. Alternatively, employers may want to consider offering employees who have tested positive the opportunity to perform their respective work from the home office, insofar as this is possible considering the nature of the work activity. If there are no home office agreements in place yet, employers may not be able to enforce this unilaterally.
- If employees who have tested positive cannot wear masks and therefore cannot come to work, a differentiation might be necessary between the federal states. In Baden-Wüerttemberg, such employees are likely to be subject to the isolation obligation again. In this case, if they are symptom-free, they may be entitled to compensation for the isolation period under § 56 IfSG (German Infection Protection Act), insofar as working from home is not possible. In Bavaria, Schleswig-Holstein, and Hesse, on the other hand, the application of § 56 IfSG is likely to be ruled out due to the elimination of the isolation obligation.
- It is currently unclear what the situation is regarding the employment and compensation obligations of commuters who live in a state without an isolation obligation but work in a state with a continuing isolation obligation. If there is an isolation obligation in the federal state of the place of business, commuters will probably not be allowed to come to work. It is likely that continued remuneration will only be required to be paid if the commuters are either able to work in a home office capacity or are otherwise entitled to remuneration (for example, under the Continuation of Remuneration Act or § 616 of the German Civil Code (BGB)).
Employers may want to consider their duty of care to infected employees, as well as to the workforce, against the costs of continued pay in the event of a COVID-19 infection. To continue to minimize the risk of infection in the workplace, employers may appeal to their employees to take sick leave and stay home when they begin to display symptoms of a cold. Employees still have the option of taking sick leave from the doctor via telephone due to COVID-19–related symptoms until March 31, 2023.
In addition, adapting the company hygiene concept—with the participation of a possibly existing works council—could be considered. For instance, an employer could require employees to wear FFP2 masks on-site instead of standard medical masks. In order to protect employees, employers may want to examine more closely the extent to which testing offers can be made in order to detect COVID-19 infections in the company as early as possible. Similarly, employers may wish to consider reviewing whether they can offer their employees the option of working from home offices in general, or at least in the event of a positive COVID-19 test. In addition, the procedure for employees to report COVID-19 infections may be adapted to conform to the new regulations.
The Berlin office of Ogletree Deakins will continue to monitor developments with respect to German guidance regarding COVID-19 and will post updates on the firm’s Cross-Border blog and in the Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
