In Munich, a corpse preparer “due to corona” resigned. In Hesse, a teacher loses “due to corona” his job. And restaurants are anxiously looking forward to another pandemic winter: Will they have to lay off employees when there are hardly any more guests to expect?
Despite all the exceptions that the hated virus entails: Corona is not a special case under labor law. “Because of corona,” no one in this country can be fired. But just because corona per se is no reason for termination, cancellations in connection with the virus may well be justified. Just as before the pandemic, an ordinary dismissal must be operational, behavioural or personal — or else there is a reason for immediate termination. We have compiled the most important scenarios for you.
Do you need assistance with questions relating to employment law? Would you like to know whether your dismissal is justified? Our employment law attorneys will be happy to advise you.
My employee is ill with COVID-19.
Get well soon! An infection with COVID-19 is no reason for termination. Even if a prolonged absence of work due to long Covid is to be expected, the requirements for dismissal due to illness are very high. It is then important to take into account the deadlines for a company integration management (BEM) procedure and, if necessary, to initiate appropriate measures. We would be happy to advise you on this.
My employee is not complying with the prescribed quarantine.
If an employee has tested positive for SARS-CoV-2 and enters the company — regardless of the intensity of possible symptoms — he/she puts his colleagues at risk. In this case, a warning can be issued and, if the quarantine continues to be disregarded, termination without notice.
My employee refuses rapid tests.
In this case, the detailed circumstances of the employment relationship must be considered. Is the rapid antigen test mandatory because the employee is not vaccinated? Have you ordered rapid tests for all employees because, for example, a larger meeting is necessary, customers are visiting your company or your employees are offering body-hugging services? In the above scenarios, your order to carry out rapid tests would be considered justified. In this case, a refusal to take the test is equivalent to a refusal to work. The employee could be warned — in the event of repetition, there is a risk of behavioral dismissal.
However, if you simply want to be “on the safe side” even though your employees are sitting in individual offices, it is questionable whether you can actually order rapid antigen tests as an employer. In this case, your employee can refuse the test.
My employee doesn't want to get vaccinated.
Similar to refusing the rapid test, it depends on the circumstances: If the 3G rule applies in your company and your employee gets tested regularly, he/she does not have to get vaccinated. However, if your company is a clinic, a nursing home or a medical practice, vaccination will be compulsory for all employees from March 2022. In that case (unless there are medical reasons not to do so) vaccination against SARS-CoV-2 is one of your employees' obligations — as is confidentiality about trade secrets or reporting illness in the event of illness. If your employee breaches this obligation, this may justify behavioral dismissal.
My employee is afraid of infection and therefore does not want to enter the company.
Is it possible for your employee to work from home? If not, his/her fear of infection is unfortunately equivalent to refusing to work — in this case, too, a warning and later a behavioural dismissal are justified.
My employee wants to work — but our company is suffering severely economically from the pandemic.
In many companies — particularly during lockdowns — the number of orders has fallen. Catering is also suffering greatly from the strict requirements for their guests. Nevertheless, there are strict requirements for operational cancellations, which are generally not met in connection with corona. However, it may be necessary to check whether short-time work is an option for your company. Should your company nevertheless meet the requirements for operational redundancies (because it will close permanently, for example), you must first carry out a social selection. We would be happy to advise you on how this process works without formal errors.
