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FAQs from a labor law perspective for doctors

FAQs:

Question 1: Do I have to work even if I am afraid of getting infected? What if I am chronically ill?

Basically there is an obligation to work. A different assessment can only be made in a specific hazardous situation; the general risk of infection is currently not sufficient for this.

However, the employer has an increased duty of care for chronically ill employees and may have to take special precautions. If the performance of the work is unreasonable for personal reasons, the employee may have a right to refuse performance, which must be reported to the employer. This must also be decided on a case-by-case basis (for more information, question 19).

Question 2: Can my employer take me back from vacation or refuse me vacation? Can I reclaim approved vacation days from the employer?

a. In principle, once approved leave can no longer be revoked. However, the employer can be entitled to do so in emergencies if there are compelling necessities, e.g. unforeseen events which do not allow any other way out (BAG, judgment of 19.12.1991 - 2 AZR 367/91). The impending staff shortage in the hospitals due to the expected number of seriously ill patients on the one hand and illness-related staff absences on the other hand is likely to be such an exceptional or catastrophe case, at least in most cases.

This means that in the event of such an emergency, the employer will be able to bring employees back from vacation and can reject vacation requests for the near future. In the event of repatriation, however, the employer is obliged to reimburse the resulting costs.

b. Approved leave that the employee cannot use reasonably due to possible travel restrictions, for example, cannot be returned unilaterally by the employee. The consent of the employer is required for this. Whether the vacation has already been approved depends on normal company practice. If it is only a matter of vacation requests, these can be corrected.

c. If the employee falls ill while on vacation, then according to Section 9 of the Federal Vacation Act (BUrlG), the employee must be credited with the lost vacation days upon presentation of a certificate of incapacity for work.

However, the question arises as to whether already approved vacation days must be re-credited by the employer if there is a quarantine at the same time or overlapping due to an official order without disease comes. Because the regulation of § 9 BUrlG, according to which vacation is not taken into account in the event of illness, is only applicable if it is a illness acts. If it is a suspected quarantine or a quarantine as a contact person without simultaneous illness, the recreational value as the purpose of the vacation in quarantine is just as unattainable as in the case of illness, which is why the question arises whether a vacation credit must be made at least in the case of no-fault quarantine. The Federal Court of Justice ruled in this direction back in 1978 on the legal basis of the Federal Disease Act (BGH of November 30, 1978 - III ZR 43/77). It remains to be seen whether the case law will also follow this legal opinion in times of Corona.

Question 3: Can my employer get me back from the time off allowance or can it revoke it?

In the event of urgent operational needs, the employer can ask the employee to work despite the granting of time off in lieu. In principle, this must be done with a reasonable lead time. Short-term “getting out of the free” can be justified in the event of a disaster if the employee is also obliged to work at short notice due to his special duty of loyalty to the employer. Depending on the development of the situation in the clinics, the disaster will lead to the fact that once approved leisure time compensation can be withdrawn or it will be possible to “get it out of the open”. This must also be decided on a case-by-case basis.

Question 4: I do not have childcare, is there a right to leave?

In principle, childcare falls within the employee's risk sphere. In the particular situation that exists at the moment, there may be a claim for exemption in individual cases if childcare cannot be ensured despite all efforts. Whether there is a claim to remuneration in this case depends on the specific contractual structure. However, this will depend on the individual situation, e.g. in the case of single parents or if both parents are indispensable in system-relevant areas, but emergency care is possible. A decision on a case-by-case basis is always required here.

It also has to be decided on a case-by-case basis whether emergency care needs to be used. We recommend talking to the employer.

Question 5: I have to look after my child at home because the daycare / school is closed and I do not receive a salary, are there any support options?

In these cases, a claim for compensation according to the Infection Protection Act (IfSG) comes into consideration. The new child sickness benefit has also been in effect since January 5, 2021 (see question 6).

Pursuant to Section 56 (1a) IfSG, working parents receive monetary compensation if

  • the German Bundestag has identified an epidemic situation of national scope and
  • Facilities for the care of children, schools or facilities for people with disabilities are temporarily closed by the competent authorityor
  • whose entry is prohibited, also due to isolationor
  • if school or company holidays are ordered or extended by the competent authority, the compulsory attendance at a school is lifted or access to childcare is restrictedor
  • there is an official recommendation to refrain from visiting an institution for the care of children, a school or an institution for people with disabilities and
  • the child has not yet reached the age of 12 or
  • the child is disabled and in need of help and
  • the child has to be supervised, looked after or cared for by the working parent himself, i.e.
  • no other reasonable care option can be ensured

(e.g. reduction of overtime, home office) and

  • the working parent will suffer a loss of earnings as a result.

The lack of childcare facilities must be proven to the authorities and, if necessary, to the employer. The extent to which emergency care for children with parents in systemically relevant professions is a reasonable option depends on the decision in the individual case, including whether the use of emergency care is reasonable for the child.

No compensation is granted during the normal closing times of the care facility, such as daycare or school holidays.

The compensation is paid for up to ten weeks per working parent, for single parents up to twenty weeks, and amounts to 67% of the loss of earnings of the working person concerned, but no more than 2,016 euros for a full month.

The maximum period of ten or twenty weeks does not have to be used in one go, but can be spread over several months. The employer, who can submit a reimbursement application to the competent state authority, pays the compensation.

The following applies to claims up to March 29, 2021: The employer pays the compensation for the first six weeks. From the seventh week onwards, the person concerned must submit an application for compensation to the competent authority, provided that the employer has not reimbursed the loss of earnings beyond that.

For compulsorily insured persons who receive compensation in accordance with Section 56 (1a) IfSG, the existing insurance cover in the pension, health and social long-term care insurance as well as in accordance with employment promotion law will be continued. The costs are borne by the country that is liable to pay compensation. Persons who were not compulsorily insured before drawing the compensation can have their expenses for social security reimbursed to an appropriate extent by the competent authority on application (see question 14).

The epidemic situation of national scope currently applies until June 30, 2021.

For the period in which child sickness benefit is claimed in accordance with Section 45 SGB V (see question 6), neither parent can claim compensation in accordance with Section 56 (1a) IfSG.

For more information, see:

Question 6: What is the new regulation on child sickness benefit all about?

Based on the resolution of the federal-state conference of 5 January 2021, the new statutory regulation of Section 45 (2a) SGB V and thus an increase in the number of children’s disease days was resolved. The change came into effect retrospectively on 5.1.2021 and is valid until 31.12.2021.

Parents are currently entitled to child sickness benefit, if

  • you and the child you are taking care of have statutory health insurance and
  • no other person in the household can take care of the child and
  • the child has not yet reached the age of twelve or has a disability and is dependent on help or

[Note: There is no age limit for children with disabilities]

  • if the child is ill, the need for care is proven to the health insurance company with a certificate from the doctor or
  • if the school or daycare center is closed, the need for care is proven to the health insurance company by means of a certificate from the respective institution.

[Note: Parents who work in the home office are also eligible.]

Parents receive 30 days each, single parents 60 days child sickness benefit per child. If there are several children, the entitlement is limited to a total of 65 working days per parent, for single parents to a total of 130 working days.

Parents are entitled to children's sick days even if the children are healthy, but childcare facilities and schools are closed or their entry is prohibited due to protection against infection. The same applies in cases in which the compulsory attendance is lifted or child care is restricted and the parents must therefore take care of the care themselves.

In contrast to the claim from Section 56 (1a) IfSG (see question 5), no evidence has to be provided that no “reasonable care” can be ensured.

The entitlement to child sickness benefit generally amounts to up to 90% of the lost net wage and is capped at 70% of the contribution assessment ceiling in the statutory health insurance. This results in a daily maximum rate of 112.88 euros in 2021. Before the payment is made, contributions to pension, unemployment and long-term care insurance are deducted at the usual contribution rate for employees.

For the duration of the payment of the child sickness benefit, the right to compensation for both parents in accordance with Section 56 (1a) IfSG is suspended.

The parents concerned must submit the application for child sickness benefit to the respective statutory health insurance company.

For more information, see:

ttps: //www.bmfsfj.de/bmfsfj/fragen-und-responseen-zu-kind Krankentagen-und-zum-kinderkrankengeld-164976

Question 7: Can the employer ask me to leave my job despite a duty roster that has already been approved?

Against the will of the doctor, this is not generally permitted without further ado due to the employment contract, §§ 611, 611a of the German Civil Code (BGB). If the doctor does not come to the contractually agreed working hours due to the employer's instruction to stay away from work, he still retains his full remuneration claim. Because the employer is in default of acceptance, § 615 S. 1 BGB.

However, it may be that the employer has an interest in suspension that is worth protecting for the “release”. This is the case, for example, if the doctor has a specific suspicion of being infected with the coronavirus (for more information, see 12.).

Question 8: Can the employer ask me, despite an already approved duty roster, to leave my workplace and "dump" my overtime or use vacation days, e.g. because elective interventions are being cut back?

See answer 9. No overtime may be reduced or compulsory leave may be ordered without express agreement. The fact remains that the employer must continue to pay the remuneration due to his default in acceptance (Section 615 sentence 1 of the German Civil Code). Offsetting against overtime or vacation days requires an express agreement with the doctor. Such an agreement may be contained in the employment contract, in collective bargaining agreements as well as in company or service agreements. Inquire about this with your works council as to whether there have been short-term (operating) agreements with the employer - possibly also related to the current situation - and have these checked for their effectiveness with your respective regional association.

Question 9: Can the employer schedule me with minus hours?

In order for minus hours to occur, certain prerequisites are required.

In principle, this can be an agreement in the employment contract, e.g. if the working hours are regulated as average regular working hours. In this case, it must also be specified within which compensation period the agreed working hours must be reached. If necessary, there is then the option of distributing the working hours within the defined compensation period according to the needs of the employer. Even in this case, the salary will continue to be paid equally. If the employer does not manage to compensate for the minus hours within the agreed compensation period by ordering overtime, he is not authorized to deduct any remaining minus hours from the salary.

A corresponding regulation can also result from a collective agreement applicable to the employment relationship, if this provides for an average working time with a compensation period.

Some collective agreements also allow the introduction of working time accounts. In the same way, works agreements with the employee representatives can provide for the arrangement of minus hours if this is not contradicted by a collective agreement or if this allows the regulation by means of a works agreement. What these legal bases have in common, however, is that in such a case they must explicitly regulate the permissibility of the occurrence of minus hours.

Question 10: I am employed in an MVZ or a doctor's practice. What applies in this case with regard to an exemption from my employer?

The arrangement of compulsory leave is also unthinkable here. An arrangement for compensation for leisure time depends on the contractual arrangement. It should not be possible to order compensation for leisure time if the employer's economic risk is to be passed on to his employees. In case of doubt, the labor courts will have to decide this question.

It is not possible to arrange company holidays without adequate notice. In companies with employee representatives, an agreement with the employee representatives is also required. Sufficient remaining vacation days must remain available, the entire annual vacation does not have to be used.

Question 11: Can the employer send me home because he thinks I have an infection or illness?

Alternative 1: There is a well-founded suspicion or an existing infection:

If the employer has justified suspicion that the employee has corona, he may send him home to recover because of his duty of care to protect the person concerned, the rest of the workforce and the patients. In this case, you are initially entitled to continued payment in the event of illness for a period of six weeks. A longer period can also be agreed in employment contracts or collective bargaining regulations.

Alternative 2: The suspicion is unfounded:

If the employer has no concrete indications that the employee could be sick and he still sends him home, the employer must continue to pay the undiminished salary. This is because he is in default of acceptance if the doctor is able and ready to work and cannot fulfill his duty to work solely on the basis of the employer's order, Section 615 sentence 1 of the German Civil Code (BGB).

The Dortmund Labor Court confirmed this view with a judgment dated November 24, 2020 (5 Ca 2057/20). An employee who is sent by his employer to a quarantine not ordered by the authorities - but requested by the employer to protect the workforce - retains his entitlement to remuneration if he has expressly offered his work to the employer in good time. In the present case, the employee had entered a risk area, which was only declared a risk area by the RKI after entry.The employer then quarantined him for 14 days after returning from vacation and deducted working hours, which the labor court did not consider permissible.

In the opinion of the court, however, this could change if the employee consciously went to a risk area designated by the RKI for vacation purposes.

The employer appealed the judgment to the Hamm Regional Labor Court.

Question 12: Which regulations currently apply to entries from a risk area?

Due to the current pandemic situation, the legislator has re-regulated the entry conditions from a risk area. The possibility has been created to regulate nationwide entry conditions in an ordinance. This has also been implemented with the Coronavirus Entry Ordinance of January 13, 2021. In addition to the quarantine regulations of the federal states, the new statutory ordinance regulates uniform registration, test and proof obligations for travelers as well as obligations of transport companies and mobile network operators in connection with entering the Federal Republic of Germany after staying in a risk area. Changes have been made to this ordinance with effect from March 30, 2021, which, among other things, provides for a test requirement for air travel before entering the Federal Republic of Germany. This test obligation initially applies until May 12th, 2021. Further information and current FAQs can be found under questions and answers about entering Germany (bundesgesundheitsministerium.de).

According to the currently prevailing provisions of the federal states, travelers who have stayed in a risk area in the last ten days before entering Germany are generally obliged to go into quarantine after entering Germany. As before, such travelers are obliged to fill out a digital entry registration ("DEA") at www.einreiseanmeldung.de.

People who have entered the Federal Republic of Germany and have stayed in a risk area in the last ten days prior to entry (entry from "risk area") must have proof that they are not currently using the Coronavirus SARS-CoV-2 are infected and present this to the competent authority within the meaning of the Infection Protection Act upon request. Evidence is a medical certificate or a test result regarding the absence of an infection with the SARS-CoV-2 coronavirus. When entering the country, people entering from a risk area must immediately and directly go to quarantine, which can be shortened by a second negative test after 5 days at the earliest.

In addition to this general test and verification requirement, special measures are provided for entry from certain risk areas. People who have stayed in a risk area for which a particularly high risk of infection with the SARS-CoV-2 coronavirus has been determined (so-called "high incidence area") are obliged to provide evidence of the absence of an infection upon entry with the coronavirus SARS-CoV-2 and to present it to the competent authority or the authority commissioned by it upon request.

The same applies to entry from a so-called virus variant area (currently South Africa, Great Britain, Ireland, Northern Ireland and Brazil). Here, too, the negative test must already be carried out upon entry. For entries from virus variant and high incidence areas, it is not possible to shorten the quarantine period by performing a further negative test.

In addition to the registration, test and quarantine rules described above to protect the population in the Federal Republic of Germany and to limit the entry and rapid spread of the new virus variants, a temporary restriction on the transport of people from the states classified as virus variant areas in the Federal Republic of Germany introduced.

The transport ban affects passenger transport by train, bus, ship and flight directly from these countries. The transport ban applies until May 12, 2021, midnight.

The employee may not return to work until a test result is available or the quarantine period has expired. For this period, there can be a claim to compensation in accordance with Section 56 IfSG, unless the isolation or the prohibition of activity could have been avoided by failing to travel to the risk area because there were no compelling reasons for the trip that could not be postponed.

Question 13: What about the salary in the event of an official company closure (quarantine)?

The employer must continue to pay the remuneration of his employees in accordance with Section 615 of the German Civil Code (BGB) even in the event of unexpected operational disruptions for which he is not responsible (e.g. Düsseldorf Regional Labor Court, judgment of March 30, 2021, 8 Sa 674/20 - the appeal is permitted).

In this case, however, Section 56 of the Infection Protection Act grants a claim against the competent authority for so-called loss of earnings compensation for those employees who have been banned from professional activity by the authority as "dropouts, suspected contagion, suspected of being infected or other carriers of pathogens". Afterwards, the employees affected by the quarantine receive compensation from the employer in the amount of the loss of earnings for six weeks. The employer can have the loss of earnings reimbursed by the authorities. From the seventh week onwards, the state continues to pay the sickness benefit.

Question 14: Do I get a salary if I am not ill but am under officially ordered quarantine?

Persons who are under officially ordered quarantine or who are subject to the so-called professional employment ban under the Infection Protection Act are released from their work obligation. In accordance with Section 616 sentence 1 of the German Civil Code (BGB), the employer must continue to pay remuneration to his employees if they are prevented from providing services for a relatively insignificant amount of time due to a personal reason through no fault of their own. In many cases, however, Section 616 of the German Civil Code is either restricted or excluded by an employment contract or a collective agreement. In this case, the claim for compensation against the state applies according to Section 56 (1) IfSG. The employee therefore continues to receive his salary (net wage) for six weeks from the employer, who in turn receives this reimbursement from the authorities. From the seventh week onwards, the state continues to pay the sickness benefit.

As with continued payment of wages, the so-called loss of wages principle applies in the Infection Protection Act. In short, this means: The employee is to be placed as he would if he had continued to work. Therefore, inconsistent remuneration components, such as any service remuneration for on-call services, on-call services and / or surcharges, must also be compensated.

For compulsorily insured persons who receive compensation in accordance with Section 56 (1) IfSG, the existing insurance protection in the pension, health and social long-term care insurance as well as in accordance with the law of employment promotion will be continued. The contributions are paid by the employer with the salary and reimbursed by the state liable for compensation. This is problematic, however, for people who are not compulsorily insured, for example, who are insured with a medical pension or are insured with private or voluntary statutory health insurance. With this group of people, the employer is not obliged to pay the social security contributions. If the employer does not voluntarily take over the payment in this case, the employee has to take care of the reimbursement himself, because he is obliged to pay the contributions as the contribution debtor of the pension fund and the private / voluntary health insurance. To do this, he must submit an application for reimbursement in accordance with Section 58 IfSG to the reimbursable country within a period of one year. The contributions to the pension fund and to private or voluntary health insurance are then paid directly to him.

In the case of one's own illness, on the other hand, sick pay and sick pay are paid.

Further information is available from:

https://www.bundesgesundheitsministerium.de/fileadmin/Dateien/3_Downloads/C/Coronavirus/FAQs_zu_56_IfSG_BMG.pdf

Question 15: Can I have the aforementioned questions legally clarified after the crisis and what do I have to consider?

Claims can also be made at a later point in time. However, in the event of a dispute, the employee must still be able to prove the individual - possibly illegal - instructions from the employer.

If, for example, the employer has offset overtime or has deducted vacation days without a corresponding agreement, it is advisable to object to the arrangement of vacation or overtime reduction in writing as a precautionary measure and to reserve the right to assert the corresponding rights at a later point in time.

In addition, the employee must defend himself against this procedure within the framework of any applicable deadline and assert claims against the employer in writing (e-mail and fax are sufficient) in due time. Exclusion periods regularly provide a period of three or six months for enforcement. Please check whether or which deadline is relevant for you.

Question 16: What does the employer have to do to protect my health?

In the context of the duty of care under the employment contract as well as the requirements under labor protection law, the employer must do everything to ensure that employees can do their work safely.

According to Section 5 of the Occupational Safety and Health Act (ArbSchG), employers are obliged to use a risk assessment to determine the risk associated with their work for each workplace and to determine which occupational safety measures are required. This obligation also applies to working with biological substances such as viruses. If potential hazards are identified, the employer must take all possible and reasonable technical and organizational protective measures, such as the separation of work areas or the provision of suitable protective equipment and disinfectants, but also, if necessary, the release of employees returning from risk areas.

In the meantime, the Federal Institute for Occupational Safety and Health (BAuA) has specified the requirements for occupational safety in the SARS-CoV-2 occupational safety rule for the period of the epidemic situation of national scope (hereinafter epidemic) established in accordance with Section 5 of the Infection Protection Act. The SARS-CoV-2 occupational safety rule is determined or adjusted by the advisory occupational safety committees at the Federal Ministry of Labor and Social Affairs (BMAS) together with the Federal Institute for Occupational Safety and Health (BAuA) and announced by the BMAS in the joint ministerial gazette. The SARS-CoV-2 occupational health and safety rule specifies the requirements of the ordinances according to the Occupational Safety and Health Act (ArbSchG). If these specifications are complied with, the employer can assume that the requirements from the ordinances have been met. If the employer chooses a different solution, it must achieve at least the same level of safety and health protection for the employees. In addition, the rule describes the state of technology, occupational medicine and hygiene as well as other reliable ergonomic findings that the employer must take into account when taking occupational health and safety measures in accordance with Section 4 Number 3 ArbSchG during the epidemic. You can find the complete occupational health and safety rule in the currently valid version as well as the corresponding FAQs here: SARS-CoV-2 occupational health and safety rule (baua.de)

According to Section 17 (2) ArbSchG, employees can contact the competent supervisory authority if they are of the opinion that the measures taken by the employer are insufficient and a complaint made to the employer has not been remedied. We urgently recommend consulting the lawyers in our regional offices beforehand.

In special exceptional cases, it is conceivable to refuse to perform work in accordance with Section 275 (3) of the German Civil Code (BGB) if the specific risk situation makes the work unreasonable. However, legal considerations are always required in each individual case. The result of such a weighing is often different for the employer than for the employee. The employee bears the risk of whether there is actually a so-called right to refuse performance according to legal standards.

Question 17: I was in contact with a Covid19 patient or there is a possibility of an infection, which quarantine regulations apply to me?

The RKI distinguishes between three categories when dealing with contact persons.

  1. Contact person category I is anyone who has met a corona-positive person with symptoms directly - from two days before the onset of the first symptoms of the patient up to ten days after the onset of symptoms. For cases in which no symptoms are noticeable, contact person I is someone who has met them directly from two days before to ten days after the positive test. According to the RKI, being hit directly means: at least 15 minutes of "face-to-face" contact, or staying together in a poorly ventilated room for a long time, direct contact with secretions, close contact with or long stay with sick people without protective clothing. Further example constellations and information can be found here: (https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Kontaktperson/Management.html

Category I contacts are generally kept in isolation for 14 days (quarantine), which is ordered by the health authorities.

Special case:

In some cases there are general decrees (e.g. in some districts in Berlin) according to which, for example

  • Category I contact persons according to the criteria of the RKI,
  • People with signs of illness who have had a test or for whom a test has been ordered,
  • People who have had a positive test result for SARS-CoV-2 viruses since the general decree came into force,
  •  

be obliged to comply with the quarantine immediately without the need for a single notification from the health department. Please find out whether such a general decree applies to you. Information on this is usually provided online by your municipality, your district or your state government.

  1. Category II contact persons (lower risk of infection)

Contact person category II is someone who has not had any exposure as described under contact category I, but exposure is still possible. The health department decides on a case-by-case basis for contact persons in category two.

  1. Category III contact persons (only to be used for medical personnel)

The organizational measures and personal protective equipment (PPE) as well as recommendations of the RKI "Hygiene measures in the context of the treatment and care of patients with an infection by SARS-CoV-2" and "Extended hygiene measures in the health system in the context of the COVID-19 pandemic" for medical Personnel serve to minimize the risk of infection. If the recommended protective measures are observed, there is therefore no reason for segregation after contact with a COVID-19 patient. The "recommendations of the BAuA and the ad-hoc working group" Covid-19 "of the ABAS on the" use of protective masks in connection with SARS-CoV-2 "primarily serve the protection of workers. Despite conscientious implementation of the protective measures and adequate training, errors in handling and thus exposure cannot be completely ruled out. Therefore, medical staff with close contact to confirmed cases of COVID-19 (including asymptomatic cases with laboratory diagnostic evidence of SARS-CoV-2) are assigned to category III contact persons if adequate protective measures are used.

  1. Exception: Options for early start-up of contact persons among medical staff in medical practices and hospitals in the event of a relevant staff shortage

    If there is a situation with a relevant staff shortage in health care, contact persons among medical staff can, under certain conditions, be allowed to return to work prematurely. This distinction applies to the work situation. Outside of their medical work, employees in hospitals and medical practices are still subject to the general recommendations for managing contact persons in the general population. Medical personnel are allowed to travel to work by public transport in this situation. In no case may events, shops or restaurants, for example, be visited during the quarantine period.

The exceptions and specific details depend on which contact category they fall under. You can find detailed information here: https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Getrennte_Patientenversorg_stationaer.html;jsessionid=42F7B61468A410F1F2DB5E63F21690E0.internet061?nn=13490888 .88840688

Conclusion: According to the above-mentioned principles, an early start of activity is only possible in very special cases.However, it decides whether the requirements are met in no case the doctor is responsible for it. Rather, the RKI recommends that only hospitals and health authorities decide together. If you are asked to start work early by the employer, have this request confirmed in writing or by e-mail and consult your responsible health department. How to avoid your own personal liability problems or fines for violating the quarantine requirements.

Question 18: Can the employer employ me beyond the limits of the Working Hours Act (ArbZG)?

Sections 3 et seq. Of the Working Hours Act (ArbZG) regulate mandatory maximum limits, from which deviations can only be made in exceptional cases. The ArbZG assumes a six-day week in which 8 hours of work may be performed on workdays. The maximum weekly number is therefore generally 48 hours.

An increase to 10 working hours on working days is only possible if the additional working hours are compensated within six calendar months or 24 weeks. With so-called opt-out regulations, this number of hours can be increased over 48 hours on a voluntary basis. At least this additional hourly quota may only be used for on-call duty and not for regular working hours.

The exceptional cases in which it is possible to deviate from the principles of working time limits is regulated by Section 14 of the ArbZG. The occurrence of the coronavirus and its effects represent an extraordinary event within the meaning of § 14 ArbZG. Such a wave of illnesses neither occurs regularly nor is it foreseeable.

However, even in the current situation, unlimited extension of working hours is not permitted, Section 14 (3) ArbZG. Even if, for example, the daily working time can be adjusted beyond the maximum limits set out in Section 3 ArbZG, the weekly working time, on an average of six calendar months or 24 weeks, may in principle still not exceed 48 hours. Agreed opt-out regulations continue to apply.

In tariff areas in which a limit on the number of on-call services has been agreed, in the event of an increase in the number of patients due to the coronavirus, it must be assumed that patient safety is at risk.

In addition to the exceptions provided for directly in the ArbZG, the supervisory authority can allow further exceptions insofar as these are urgently necessary in the public interest, Section 15 (2) ArbZG. If such exceptions are permitted, the working hours may not exceed 48 hours a week on average for six calendar months or 24 weeks, Section 15 (4) ArbZG.

On the occasion of the first wave of the corona pandemic, use was made of Section 15 (2) ArbZG in the federal states and the responsible authorities made it possible in particular to extend the permissibility of working on Sundays and public holidays and to extend daily working hours to up to twelve hours. In April, the federal government also issued the »Covid-19 Working Hours Ordinance«, which is limited to the end of July 2020. This ordinance allowed the daily working hours of systemically relevant occupations to be extended to up to twelve hours and the rest time to be shortened by up to two hours. It remains to be seen whether this ordinance will come into force again in view of the increasing burden on hospitals.

Question 19: I belong to a risk group myself. Do I have to come to work?

There is no general right of the employee not to appear at work for fear of infection.

In order to be able to refuse work, it is necessary that the work is unreasonable (Section 275 (3) of the German Civil Code). Unreasonableness can be given, for example, if the work represents a significant objective risk for the person concerned or at least a serious, objectively justified suspicion of a risk to body or health. If you yourself belong to one of the risk groups of the coronavirus, this right to refuse performance may come under certain circumstances, especially if contact with infected people is very likely due to the nature of the work and possible and reasonable measures according to the Occupational Safety and Health Act are not or not taken by the employer are sufficient.

However, we strongly recommend that you obtain legal advice beforehand, taking into account the expertise of your own treating doctor. The company doctor should also be contacted so that effective protective measures can be initiated. It is also advisable to contact the representative for severely disabled employees or the employee representative. Furthermore, all attempts should be exhausted beforehand to reach an amicable arrangement with the employer for absenteeism, such as taking vacation or overtime. Because the risk of wrongly failing to perform the work (i.e. there was no right to refuse to work) is borne solely by the employee. A warning and termination of the employment relationship by the employer due to an unjustified refusal to perform work are conceivable in the event of a misjudgment.

It should be noted that the employer is released from his remuneration obligation even if the employee has rightly refused to perform the work due to impossibility.

Question 20 (deleted):

Question 21: I am pregnant or breastfeeding at the moment. What does the employer have to do?

In principle, the employer must prepare a risk assessment for each workplace, which determines whether and, if so, under which protective measures it is possible to employ a pregnant woman or a nursing mother in a workplace (§§ 9-14 Maternity Protection Act, MuSchG).

For example, an employer may not allow a pregnant or breastfeeding mother to engage in any activities or expose her to working conditions in which she comes into or may come into contact with biological hazards to such an extent that this represents an irresponsible risk for her or her child ( Sections 11 (2) and 12 (2) MuSchG).

Against the background that the effects of a SARS-CoV-2 infection cannot currently be reliably assessed and the pathogen is currently classified in risk group 3 according to the Biological Agents Ordinance, there is an increased risk of infection at the workplace, e.g. when a pregnant woman is in closer contact to classify those infected with SARS-CoV-2 as an irresponsible risk within the meaning of Section 9 (2) MuSchG for preventive reasons. This risk of infection with SARS-CoV-2 must therefore also be included in the risk assessment for a workplace. It should be noted in particular that certain protective measures, such as the permanent wearing of FFP3 masks are not suitable for pregnant women.

Above all, the direct contact with changing groups of people and the possible interaction with sick and suspected people lead to the fact that pregnant women are no longer allowed to be employed in hospitals and medical practices, especially when the number of infections increases, unless it is an activity that is remote from the patient, for example Home office or in the administration (here too, hygiene and other necessary protective precautions must be observed) possible. If this is not the case, a company prohibition of employment must be pronounced. V.m. Section 21 MuSchG as compensation for the loss of remuneration due to the employment ban. He is reimbursed the maternity protection wage paid using the so-called U2 apportionment scheme.

Information on the employment of pregnant women in Corona times can be found on the homepages of the responsible ministries of the individual federal states as well as in the information paper of the Committee for Maternity Protection (AfMu, as of February 22, 2021)

https://www.bafza.de/programme-und-foerderungen/unterstuetzung-von-gremien/ausschuss-fuer-mutterschutz-geschaeftsstelle/

Addendum 01/21: According to a new study by the US Centers for Disease Control and Prevention (CDC), pregnant women are more likely to experience severe disease and death than non-pregnant women of the same age.

In newborns, the risk of perinatal transmission is only increased if the mother is actively infected with SARS-CoV-2. The two studies were published in the Morbidity and Mortality Weekly Report (MMWR, 2020; DOI: 10.15585 / mmwr.mm6944e2 and e3).

https://www.aerzteblatt.de/nachrichten/117999/SARS-CoV-2-Studie-sicht-erhoehtes-Erkrankungslösungen-bei-Schwangeren-und-Neugeboren

“The Robert Koch Institute has not yet included pregnant women per se in the list of risk groups for a severe course of Covid-19. For pregnant women with previous illnesses or pre-existing risk factors (obesity, high blood pressure, diabetes), the likelihood of admission to an intensive care unit and invasive ventilation increases and increases with age. The Robert Koch Institute currently (as of November 7, 2020) has not yet been able to determine any increased mortality among pregnant women. Further studies should therefore be carried out in order to be able to make valid statements.

https://www.mdr.de/brisant/schwangere-corona-risk-schwerer-fluss-covid-100.html


Question 22: Will the Corona crisis affect my parental allowance?

Due to the Corona crisis, problems arise in the area of ​​parental allowance receipt. If you receive short-time work allowance or unemployment allowance I in the calculation months for parental allowance (12 months before the birth), this has so far reduced the amount of the parental allowance. Problems also arise when parents work in systemically relevant professions and therefore cannot take months of parental allowance.

So that the current situation is not to the disadvantage of the parents, some changes have been decided for 2020:

  • Adjustments to the parental allowance for parents who work in so-called systemically important professions. Since they are particularly needed now, they can postpone their parental allowance months. These must be taken by June 2021 at the latest.
  • In addition, parents do not lose the partnership bonus - an additional benefit that mothers and fathers who work part-time at the same time to share the child-rearing process get - if they currently work more or less than planned due to the Corona crisis.
  • In addition, parents and parents-to-be who are currently losing income, for example because they are on short-time work, do not have a disadvantage in terms of parental allowance. Specifically: Short-time working allowance and unemployment benefit I due to Corona do not reduce the parental allowance and are not included in the later calculation of the parental allowance for another child.

 

Question 23: Can my employer second / transfer me to another specialist department or another clinic location?

Whether the employer can second the doctor to another specialist department or to another clinic location depends on the one hand on what is regulated in the employment contract and on the other hand on whether the employment relationship is subject to a collective agreement.

Basically: According to § 106 of the trade regulations, the employer has the right to determine the type and location of the work performed by his employees. This right of direction is reflected in collective agreements and employment contracts, e.g. in the fact that the employer is granted a transfer right. Conversely, an agreement between the contracting parties to restrict the employment relationship to a certain location, a certain department or to a certain work task can lead to a restriction of the employer's right of direction if it is clearly stated that the parties consciously agree to such a restriction wanted to.

In addition, of course, the co-determination rights of the employee representatives must be observed.

Question 24: Can my employer oblige me to work for another employer?

The work obligation results primarily from the employment contract and is usually limited to work for the employer specified in the employment contract. If the employer is a corporate group or has several business units, deployment at the various locations can also be considered. In contrast, the employer may only instruct a third party to work on the basis of a corresponding agreement with the employee concerned. It depends on the specific employment or collective bargaining agreement in each case. A unilateral instruction to work for another employer without an employment or collective bargaining agreement can therefore only result from legal changes in the course of the pandemic.

In the case of work for another employer, the Federal Ministry of Labor is of the opinion that it will be possible, as an exception, to lend the employee to another employer within the framework of the provisions on temporary employment without the existence of a temporary employment permit under the Temporary Employment Act (AÜG). The prerequisite for this is, according to Section 1 (3) number 2a AÜG, that

  • the employees concerned have consented to the leasing,
  • the employer does not intend to act as a temporary worker on a permanent basis and
  • the individual leasing is limited in time to the current crisis situation.

Should a job with another employer voluntary basis take place or can be ordered by a legal change, it should be noted that even if no (written) employment contract has been concluded, an employment relationship is nonetheless present. For the hospital, this means that all occupational health and safety regulations are applied. In addition, vacation entitlements are acquired and there is a right to continued payment in the event of illness. There is also an entitlement to remuneration. Because this is deemed to have been agreed. If no specific amount has been agreed, a comparison must be made. The collectively agreed remuneration of comparable employees is usually decisive. If there is no such thing, a “customary remuneration” is considered to be comparable. However, for reasons of evidence, it is strongly recommended to conclude written employment contracts.

It should also be noted that a Application forExemption from the statutory pension insurance obligation must be asked. Previously granted exemptions no longer apply here and therefore have no effect.


Question 25: Does the works council have a right of co-determination in the context of the new corona screening in clinics (regular PoC antigen tests, or also PCR tests according to the new TestVO, §§ 4 and 6 paragraph 3 there) for the test concepts or the regular employee testing?

A case law on this question does not yet exist, a right of co-determination could initially result from § 87 I No. 1 (behavior of employees in the company) if this question is about “order in the company”. It has already been judged in the affirmative that at least wearing mouth-nose protection should be subsumed under this standard as a co-determination issue, so that the measures mentioned here should fall under the regulation on "orderliness in the company".

A further right of co-determination could result from Section 87 (1) No. 7 (health protection). In principle, the subject of infection protection is subject to co-determination according to Section 87 I No. 7 BetrVG. However, in these cases it is always about the occupational health and safety of the employees. The aim of the test ordinance is primarily civil protection, so that a right of co-determination over this issue is likely to be questionable.

Question 26: Do I have to adjust my liability insurance if I am also used outside of my insured activity to ensure medical care in the context of the Corona crisis?

If, on the instructions of the employer, I carry out an activity (possibly also unrelated to the subject), then the employer also bears the liability risk for the vicarious agents. In order to avoid liability in the form of negligence, the employee should insist on adequate professional instruction in the respective activity. Our cooperation partner, Deutsche Ärzteversicherung, has assured in the area of ​​medical liability insurance that doctors can safely contribute to ensuring medical care in Germany in the context of the corona crisis with regard to their insurance cover.

Upon request, every doctor will be issued with a corresponding insurance certificate. We advise you to obtain such confirmation.


Question 27: What actually happens after the state disaster is declared? Can the state restrict my labor rights and on what basis?

In the event of a disaster, both the federal government and the federal states can, in principle, adopt measures to secure services of general interest that could have significant effects on workers' rights. The existing regulations on disaster and infection protection can be supplemented by new, permanent or temporary laws, ordinances and / or general directives.

On this basis, the state could then intervene in workers' rights. Such an intervention would currently be possible, for example, according to the Infection Protection Act and the Working Hours Act.

Question 28: A sideline job permit is temporarily withdrawn by the employer because it is feared that the employee will become infected with COVID-19 during his sideline job and will therefore no longer be available for his main job or because the employer wants to provide the workforce of his employees himself. Is he allowed to do that and am I entitled to the extra income I lost?

The employer has to consent to a reported secondary activity of the employee or to approve it if the legal interests of the employer are not impaired by the secondary activity. This mostly results from collective bargaining or employment contract regulations, but possibly also as a secondary obligation from the employment relationship.

It is indisputable that the interests of a systemically important employer to keep their employees ready for action in the corona crisis or ready to perform their own tasks can significantly contradict the interests of the employee in performing a secondary job if, for example, an infection with COVID-19 is possible due to insufficient protective measures is.

The decision as to whether a revocation of the secondary activity permit is permissible, and in particular whether the revocation may take effect immediately, will have to be decided on a case-by-case basis. It will depend on whether there is a risk to the employer's ability to work, whether the employer's interests can, from an objective point of view, really be impaired, whereby the possibility of impairment is sufficient. It will also depend on whether it has been temporarily revoked for the current emergency situation.

The state labor court Berlin-Brandenburg had to decide in such an individual case with its judgment of 01.09.2020 (16 Sa 2073/19). The defendant employer did not want to approve a part-time job of a nurse in intensive care - among other things because of a possible increased risk of infection with COVID-19. In the opinion of the LAG, however, the employer had not presented the possible negative consequences of the secondary activity in sufficient detail. The plaintiff could come into contact with infected COVID-19 patients both at his employer and as part of secondary employment. There are no indications that the necessary protective measures in the hospitals in which the plaintiff wants to pursue his secondary activity are not being observed.

As a rule, there will be no claim to reimbursement for loss of earnings in the case of prohibited secondary employment if the secondary employment has been effectively revoked.

Question 29: What about accident insurance coverage in the corona pandemic?

For doctors who treat patients every day and who work against the corona pandemic, it should not only be a matter of course to equip them with protective equipment. The downstream protection in the event that one's own infection cannot be ruled out is an indispensable prerequisite for dealing with this situation as successfully as possible. While there is still a lack of adequate equipment for medical staff, concerns have been raised, at least with regard to how accident insurance law deals with the possible consequences of this shortage. Doctors employed in hospitals are generally insured against accidents at work and occupational diseases for their professional activity in the statutory accident insurance. This also applies without restriction in the case of a SARS-CoV-2 infection. The professional association for health and welfare (BGW) as the carrier of the commercial accident insurance has expressly confirmed to the Marburger Bund, that insured persons of the BGW,who become infected with the corona virus in Germany as part of their insured activity, are under the protection of the statutory accident insurance.

The BGW has written a corresponding FAQ for this, which you can download here:

https://www.bgw-online.de/DE/Home/Branchen/News/Coronavirus_node.html#doc632104bodyText3