Preparations for the further spread of the SARS-CoV-2 coronavirus in Germany should be intensified at all levels. This is especially true for companies. With the appropriate measures, one can now learn from China and its experience in fighting viruses.
We would therefore like to pick up the ball and compare the obligations of employers in Germany and China. Such a comparison is particularly important for companies that are also invested in China. According to the Occupational Health and Safety Act, employers in Germany are generally obliged to assess the risks to health and safety for their employees at work and to derive measures from them (duty of care), Section 618 (1) BGB. This includes the obligation of the employer to inform employees about health risks and to take protective measures within the company (sections 12 (1) and 81 (1) sentence 2 ArbSchG). As part of the pandemic planning, he must then determine further measures and, if necessary, implement them.
How these protective measures should look like is not regulated, see also § 4 ArbSchG. Similar regulations can be found in Chinese labor law, see also §§ 52 and 53 labor law of the PR China. The employer should implement state safety and health standards, meet occupational safety conditions, and provide protective equipment for employees.
1. What protective measures can the employer instruct?
In order to counter possible infection by other sick employees as well as by third parties, the employer in Germany must take reasonable precautions in the company. The employer can therefore first issue general operational instructions based on his right of management, such as regular hand washing, wearing respirators, daily body temperature control, etc.
In China, the employer is even required by the government to document information about workers' travel routes from the past 14 days. The extent to which further measures are to be taken depends on the type of business and the number of employees. The works council's participation rights must then be observed under the BetrVG.
If workers refuse to obey such orders, this can lead to labor sanctions. To protect the workforce, the employer can, as far as possible, provide employees who have been in one of the particularly affected areas as long as they order home offices or release them from the obligation to work until it is clarified whether the affected worker has become infected or not . No official quarantine order is required for this.
Flexible office concepts, in which a workplace is occupied by employee A today and employee B tomorrow, pose a particularly high risk of infection and are therefore subject to special observation by the employer. This type of workstation is usually equipped with hardware such as keyboards, mice and / or docking stations, which provide an optimal environment for viruses to transmit. The employer must counter these risks with suitable measures, e.g. by the employer providing each employee with a personal device. Another option would be to additionally disinfect all workplaces at intervals of several hours.
2. Action against the employee in the event of illegal behavior in connection with the Corona virus
The action of the employer against the employee acting in violation of the duty depends on how the employee behaves in violation of the duty in detail and what level of fault can be attributed to him, i.e. a look at the individual barrel, taking into account all the possible circumstances.
According to German law, a warning is considered the mildest means, the next step is an ordinary behavioral termination and the last option is an extraordinary termination without notice. If an employee appears despite symptoms of illness or a positive diagnosis at the German workplace and therefore jeopardizes the health of the other employees and thereby even accepts the closure of the company, a warning letter is probably no longer sufficient.
If such a situation occurs in China, the employee, but possibly also the employer, if he is jointly responsible, may not only be liable for civil damages due to a violation of the law for the prevention of infectious diseases (§ 77), but is also acc. § 330 of the Criminal Code of the People's Republic of China, subject to criminal prosecution.