Germany, Administrative Court Münster, 19 May 2022, 5a K 854/21

The Court began its reasoning by assessing the conditions for the compensation request , as provided by the federal infection protection law, which had been met by the claimant. According to this rule, anyone who is suspected of being infected, is subjected to prohibitions on the exercise of work, and suffers a loss of earnings should be compensated.

The employee suffered a loss of earnings due to his quarantine isolation, according to federal infection protection law, for the period from May 9 to May 23, 2020. This order was initially expressed orally and confirmed in writing two days later. In view of the type of work performed, a butcher at a meat factory, the quarantined employee could not perform their tasks from home.

The Court analyzed whether the claim was legally based on the German civil code: in case of employment contracts, the German civil code is based on the concept “no work, no pay.” This means finding another legal basis for remuneration when the employee does not perform work.

The Court ascertained that a different legal basis could not be found in the German civil code. According to the German Civil Code “the person obliged to render the service shall not lose the right to remuneration thereafter if he is prevented from rendering the service for a relatively insignificant period of time due to a reason related to his person without his fault” (Art. 616 BGB). This was not applicable to the case as the segregation period of 15 days of quarantine was considered significant.

For this reason, the Court examined the employer’s legal obligation to adopt safety measures: employees should have sufficient and appropriate instruction on safety and health protection at work during their working hours. An employer is liable to continue to pay wages, if it is predominantly held liable for the employee’s impediment to perform their work.

However, the Court recognized that the organizational precautionary measures to contain infections were inadequate and did not provide sufficient protection to prevent new infections and to interrupt chains of infection, as the employee's quarantine order was issued due to the suspicion of infection. Indeed, it was not clear upon which concrete circumstances and contacts the employee was suspected of being infected. It was not clarified whether the infection was due to contacts within the workplace, at home, on the way to work or other private contacts. Due to this lack of knowledge, the claimant was not considered solely liable for the spread of Covid-19.

According to the German civil code, the claimant was not obliged to continue to pay wages for the period of the employee's fifteen-day quarantine.

Further, legally speaking the rules provided by the Continuation of Remuneration law (Entgeltfortzahlungsgesetz) do not apply because in the claimant’s application the employee was not incapacitated due to work.

However, the Court ascertained that in this case the compensation provided by the federal infection protection law applied. According to the Court the loss of earnings was due to the ordered quarantine.

Under the specific rules of the German federal infection protection law (§ 56 InfSchG) the worker was entitled to compensation for lost days of work, even if the employer was not obliged to pay under labor law. In this case, the employer in turn receives the sum paid to the employee from the competent authority.

Accordingly, it was irrelevant that the establishment, where the employee carried out their duties, had been closed at the same time due to an order by the authority.