No state compensation for unvaccinated employees in Covid-19 quarantine – Consequences for employers
Until now, employers have paid out the compensation for employees in Covid-19 quarantine according to the Infection Protection Act (Infektionsschutzgesetz - IfSG), which the federal state reimbursed them afterwards. However, since 1 November 2021, following a decision by the health ministers’ conference, state compensation for quarantine as a contact person shall be denied to unvaccinated persons with reference to the possibility of vaccination. The same applies to quarantine of unvaccinated persons after return from a travel area that was already classified as a risk area on the outward journey.
It is now important for employers to know whether they can refuse to pay wages to unvaccinated employees in contact quarantine and after-travel quarantine. It is also important to know whether they have the right to ask about the vaccination status of employees in Covid-19 quarantine.
Who is considered unvaccinated?
A person is considered unvaccinated if he or she does not have complete vaccination protection with one of the approved Covid-19 vaccines, even though a general vaccination recommendation has been issued by the Standing Commission on Vaccination. This excludes in particular persons who cannot be vaccinated for health reasons.
To be distinguished: Own Covid-19 illness
The discontinuation of the obligation to pay compensation only applies to quarantine as a contact person or travel returnee from a risk area, as this could have been avoided by vaccination. In the case of a person’s own Covid-19 illness, however, the statutory entitlement to continued payment of the full remuneration for a duration of six weeks also exists for unvaccinated persons.
Obligation to pay due to relatively short period of prevention?
The employer may be obliged for other reasons to continue payment of remuneration from the employment relationship, although in the case of quarantine the prevention of work is not due to illness. Sec. 616 of the German Civil Code (BGB) provides for the continued payment of remuneration if the employee is “prevented from performing his or her duties for a relatively insignificant period of time through no fault of his or her own”. This claim then also takes precedence over compensation under the IfSG.
According to the Federal Ministry of Health, five days are not yet a considerable period of time. The Administrative Court of Koblenz even considered an absence from work lasting up to fourteen days to be a non-significant period of time for a period of employment of at least one year. However, this ruling cannot currently be regarded as a general benchmark.
Definition of fault not clarified
It is still unclear whether the employer can argue that it is the fault of the unvaccinated employees if they have to go into quarantine after a Covid-19 contact or as a travel returnee from risk areas. For vaccinated persons, quarantine is only compulsory in exceptional cases for a few virus variants. The argument therefore has a good chance of success, but there have been no court decisions to date.
Practical note
Employers have several options for action.
Exclude liability for continued remuneration by contract
They can agree on an exclusion of Sec. 616 BGB in the employment contracts or check whether this is already part of the contract. In this case, they do not have to pay contractually based continued remuneration to unvaccinated employees in the event of quarantine as a contact person or travel returnee from a risk area.
Right to ask about vaccination status during quarantine
Whether the employer may ask employees about their vaccination status if this is relevant for the continued payment of remuneration during quarantine is answered differently. The Federal Ministry of Health affirms the employer’s legitimate interest in checking the eligibility requirements for the state quarantine pay. Employers can rely on this for now, but should also take into account other assessments, such as those issued by the data protection authorities. Some of them point out that employees are entitled to refuse to provide information on their vaccination status while accepting the loss of continued payment of remuneration.
