28 April 2020
While the existing contact restrictions will continue to apply until May 2020, some shops may reopen after 20 April 2020, depending on the respective federal state/municipality. Economic life is to be gradually revived in order to contain the economic effects of the corona crisis as far as possible on the one hand, but also to avoid new waves of infection on the other. This must be a careful balancing act. Under these circumstances, employers are increasingly preparing to resume operations. The following checklist is intended to provide initial assistance on the basis of a stage-by-stage plan, which must be taken into account from an HR/employment law perspective during planning and implementation.
If operations are gradually resumed, there will not generally be full use of capacity. What proportion of the workforce is needed to start? Can respective capacities be planned flexibly? For whom is a return to the operation necessary and who can initially continue to work remotely? Can a rotating system be operated?
At the beginning of the lockdown, things had to move quickly. If the home office activity is now to be extended for a longer period of time, the initial pragmatic solutions must now be re-shaped to create a (legally) secure foundation. Is there a legal basis for ordering home office? Does the IT infrastructure allow permanent remote access or do capacities need to be increased? Are IT security and know-how protection guaranteed? Are data protection regulations observed? Is there a risk assessment for the home office?
Does the company or individual agreement permit a short-term exit from or adjustment of reduced working hours in line with requirements? Is it possible to differentiate between individual departments? What must be taken into account when submitting a compensation claim if reduced working hours are terminated/adjusted within one month?
If a works council exists, it should be involved in the personnel planning at an early stage. Without the involvement of the works council, personnel planning is not possible. If a works agreement on reduced working hours has been concluded with the works council, it will usually provide for co-determination rights of the works council when reduced working hours are adjusted.
In order to reduce the continuing risk of infection as far as possible, suitable protective equipment and control mechanisms must be put in place before the resumption of operations/production. Are sufficient disinfectants and/or breathing masks available and can their use be ordered by the employer? Are structural measures necessary/possible to interrupt chains of infection? Is there ongoing documentation of presence in the operation and a system to identify contact persons in suspicious cases? Is a process defined for health checks and reporting, such as mobile temperature measurement or similar?
Any mixing of the workforce increases the risk of infection of large proportions of the personnel. The fewer contacts each individual employee has, the better. Is the formation of small working groups, or so-called “team splitting” possible? Can the separation of the workforce only take place temporarily or also locally? If a works council exists, it must be involved in the personnel deployment planning.
If initially only parts of the workforce or only certain positions are required, the operational needs must be weighed up against the rights of the employees. Basically, the principle of equal treatment under employment law prohibits access to selected employees only for no objective reason, whilst other employees remain on reduced working hours. Here, a clear documentation of the entrepreneurial decisions and operational needs is required in order to depict differentiation in a legally watertight manner, to avoid discrimination and to avoid the risk of remuneration in the case of default in acceptance.
The Federal Ministry of Labour and Social Affairs has published a new occupational health and safety standard. This standard provides for a time-limited concept of measures that employers must implement when reopening the operation. The concept of measures includes technical (design of workplaces and break rooms, ventilation measures), organizational (keeping distances, personnel planning, treatment of work equipment, visitor tracing, temperature measurement if necessary) and personal measures (protective equipment such as masks, instruction, occupational health precautions). The risk assessment and the derivation of measures must be carried out in compliance with the occupational health and safety standard. If available, the company health and safety committee must be involved in the implementation. All measures must be documented in order to exclude liability cases.
If an internal corona task force has already been set up, the extent to which further duties can be assigned to it should be examined. The corona task force should, in particular, bring together all monitoring and reporting duties. In order to limit management liability, the corona task force should be given the task and duty of observing new developments and reporting accordingly (changes in legislation, state-imposed mask obligation, relaxation/tightening of restrictions, etc.).
If, as the number of infections increases, operational activity has to be scaled back again, it may become necessary to reintroduce reduced working hours at very short notice or to increase the amount of reduced working hours again. As in the first stage, it must again be examined whether the existing company or individual agreement provides for a flexible option for the adaptation/reactivation of reduced working hours without having to negotiate all the details with the works council again or have them approved by the individual employees. Is there a framework works agreement with the works council for reduced working hours and are monthly reduced working hours implementation agreements sufficient? Is there an effective basis in the individual agreement for the unilateral re-ordering of reduced working hours by the employer? If this flexibility is not available, it should be created so that the employer can react at very short notice to the reintroduction of lock-down measures if necessary. It should also be clarified at an early stage who within the company is responsible for notifying the Federal Employment Agency of adjustments to reduced working hours.
Is there a mechanism agreed in advance between the works council and the employer so that the company organisation applied before the relaxation measures can be quickly returned to or even tightened up without several rounds of negotiations and, if necessary, an arbitration board? Have measures been taken to ensure that the works council is able to act and take decisions even during a “re-lock-down”?
In the event of a “re-lock-down”, there may a swift renewed surplus of staff, especially if there were short-term staff shortages in the second stage due to the resumption of operational activities. Is there a legal framework for flexibly building up staffing requirements required at short notice, e.g. by setting up temporary staff and/or outsourcing activities at short notice? Do the legal requirements exist in the company to “lend” personnel affected by the loss of working hours to other companies at short notice, in particular a temporary employment permit??
Should home office jobs be retained even after the acute crisis? Has home office work proven its worth (cultural change/acceptance of the home office)? Do employees now have a right to work in a home office? Should/must particularly vulnerable workers remain in the home office whilst workers not belonging to a risk group return to the company? To what extent is the principle of equal treatment to be observed? Which process is to be defined and adhered to in order to determine / query the employees belonging to the risk group in accordance with data protection regulations?
To what extent and when should business trips be allowed again? To what extent must the Business Trips Directive be supplemented and extended to include health and safety at work provisions?
Due to the sometimes frustrated holiday planning of employees during the lock-down period, there is a high risk that there will be an increased number of holiday days taken during the period of economic recovery at a time when there is a high demand for personnel. How can holiday entitlements be reduced preventively and, if possible, amicably by planning holidays in advance? Can company holidays be arranged while the lock-down is still in effect? To what extent should the works council be involved in holiday planning and company holidays? Have holiday entitlements already been used up by reduced working hours?
For necessary contact between customers and the workforce, the employer should make arrangements for both his own workforce and, where appropriate, customers or other external protection. This can also be done, for example, by providing protective masks and, if necessary, gloves. If workers travel by train or plane again, masks with a higher level of protection (FFP2 or FFP3) may have to be provided. The workforce must also be instructed in the correct use of protective clothing. Finally, the employer must plan the corresponding requirements, order the protective clothing in good time and also consider issues such as reusability/cleaning and disposal of protective clothing.
Here, it should be ensured that the exit from reduced working hours is in conformity with the law. In the case of company and individual agreements, it should be checked whether these contain appropriate exit regulations so that the legal basis for reduced working hours is not subsequently withdrawn (see above). If necessary, company and individual agreements must be supplemented accordingly before an exit from reduced working hours can take place.
The ordering of overtime requires a legal basis. Such a legal basis can be a collective agreement, a works agreement or an individual agreement. Without such a legal basis, there is no obligation for employees to work overtime. If there is a works council in the company, its rights of co-determination must also be taken into account in the organisation of overtime (scope, distribution). With regard to weekend work, it should be noted that work on Sundays is generally prohibited by law and is only possible within the framework of narrow exceptions. In companies with a works council, the introduction and implementation of weekend work is also subject to co-determination by the works council.
The protective and organisational measures introduced as a result of the pandemic may mean that the personnel structure will have to be adjusted. Such adjustments may involve permanent changes in the organisation and/or working methods. A reorganisation can also involve a personnel adjustment (i.e. reduction), because the measures introduced as a result of the reorganisation have led to an increase in efficiency and thus to a surplus of personnel. Reorganisation measures may constitute operational changes and, in this case, are subject to a reconciliation of interests and, if applicable, a social plan. Personnel adjustment measures are also subject to mass dismissal notification if the corresponding threshold values are exceeded.
The protective and organisational measures implemented during a lockdown shall be evaluated and, if necessary, adjusted with regard to the purpose pursued and the suitability for achieving it. In particular, the emergency plan concept should be continuously revised and, if necessary, adapted, either on the basis of specific events in the operation or on the basis of generally gained knowledge.
In view of the large number of applications received, the Federal Employment Agency does not apply particularly strict standards for the granting of reduced hours compensation, based on past experience in the corona crisis. However, the reduced hours compensation is always granted subject to review. It must therefore be ensured that the requirements are actually met when the loss of working hours is reported and the application for reduced hours compensation is submitted. This should also be checked again after the Agency has granted the reduced hours compensation and, if applicable, after the end of reduced working hours. If any deficiencies are found, any possible remedies should be examined in order to exclude or at least minimise the risk of repayment.
We have compiled on our website comprehensive information and recommendations for action in response to the legal implications arising from the coronavirus pandemic: Coronavirus - legal issues
by multiple authors
by multiple authors