Corona lawsuits and recent rulings on them – an update

As early as summer 2021, we compiled interesting labour law cases and rulings on Corona measures for you up to that point. The courts have since made further important rulings – on the following questions:

• Does an employer have to compensate his employees in the event of an officially ordered plant closure?
• May an employee stay away from his workplace for fear of infection?
• Are dismissals for operational reasons during ongoing short-time work lawful?

Read more on the courts’ recent decisions and reasoning.

Employment Law Issues – Recent Corona Rulings

Must an employer compensate its employees in the event of an officially ordered plant closure?

A business was forced to temporarily close due to a government-imposed general “lockdown” and corresponding administrative order to combat the Corona pandemic.

The Federal Labour Court (Bundesarbeitsgericht, BAG) has now ruled that there is no specific operational risk in this case. This has far-reaching consequences:

• The employer therefore does not have to bear the risk of the loss of work.
• He does not have to remunerate his employees. This also applies if the employees experience financial losses because of the gaps in the social security system.

May an employee stay away from his or her workplace for fear of infection?

The Kiel Labour Court ruled last year that fear of infection does not justify staying away from the workplace.

More to the point, the refusal to perform the work on site at the workplace may even justify summary dismissal, even if the employee counts himself or herself in the risk group.

This is even more so if the employee preferred to stay at home in order not to jeopardise an upcoming private holiday trip.

In the specific case, according to the Kiel Labour Court, even an extraordinary dismissal was justified.

Are dismissals for operational reasons during ongoing short-time work lawful?

In the end, according to the LAG Munich, it depends on the individual case.

In principle, dismissal for operational reasons and short-time work are mutually exclusive:

• In the case of dismissal for operational reasons, a permanent loss of work is assumed.
• In the case of short-time work, it is precisely only the temporary loss of work that is a prerequisite. This means that jobs are preserved by the granting of short-time work.

Nevertheless, according to the court, a dismissal for operational reasons is possible despite short-time work and during ongoing short-time work if the activity for individual employees affected by short-time work is permanently discontinued due to further circumstances which may occur later.

Is the holiday entitlement automatically reduced due to short-time work?

The short answer: Yes, a reduction of leave is legal. Read more on this.