Employee entitlements and employer responsibilities in relation to coronavirus

08 April 2020

One of the most important conditions to take advantage of the kurzarbeit (subsidised short-time work) system is strict adherence to the Labour Code. Above all, this means not only paying wages to employees correctly, but also reporting wages. In the following, we will draw attention to the basic obligations that an employer must fulfil if employees are absent from the workplace due to coronavirus.

1. Obstacles on the part of the employee

The most common cause of absence of an employee is nursing a family member (NFM). This institute is not new, it has been used by employees for a long time. There were three major changes relating to coronavirus. On the one hand, it is possible to use NFM for the care of children up to 13 years of age (previously only children under 10). The second change is that NFM can be drawn not only in case of illness of the child, but also because of the closure of the school facility. Finally, the third change is that NFM can be drawn for the whole time of the school closure and not only for nine days.

If an employee is in quarantine, the procedure is the same as for incapacity for work. For the first 14 days, the employer pays the employee wage compensation of 60% of the average reduced earnings; from day 15 the employee will draw sickness benefit from the Social Security Administration. The government has decided to provide employers with an allowance for wage compensation for the first 14 days, amounting to 80% of the amount paid. This support is part of the "Antivirus" programme, which we discuss below.

If an employee has become ill, i.e. has a standard incapacity for work, the regime is standard and everything is reimbursed in the normal way. The employer does not receive compensation for the first 14 days of compensation.

2. Obstacles on the part of the employer

If the employer decides not to stay in the workplace there are several variants. The most common solution used in practice is the introduction of home office. Wherever possible, workers can work from home and this is a standard work performance, i.e. there is no absence or time not worked. An employee cannot be ordered to work from home; both parties must agree on it. We recommend that this agreement be made in writing and, if this is not possible, at least by email. In a separate article, we also point out some related tax aspects.

Other solutions (such as holiday arrangements, compensatory leave, etc.) are discussed in a separate article here.

The worst situation for companies is when they must completely or partially limit or shut down their operations, either directly by government order or indirectly, due to a decrease in sales, a reduction in demand, a lack of raw materials or similar causes. It is always necessary to decide correctly why employees are not able to perform their work. For this period, employees receive wage compensation, which is calculated from the average earnings for the last completed calendar quarter. The Labour Code sets forth how to calculate this wage compensation in paragraphs 207 - 209.

  • Establishments closed due to the state of emergency (shops, restaurants, hotels, etc.) have an obstacle to work on the part of the employer under Section 208 of the Labour Code. Employees are entitled to wage compensation equal to 100% of their average earnings (the same scheme as for holiday pay). The government has decided to pay employers a contribution of 80% of the compensation paid, including contributions, i.e. from the so-called super-gross wage.
  • Closing an establishment for any reason other than a direct decision by the State is an obstacle on the part of the employer. As we have already mentioned, it is necessary to correctly determine the reason for the closure of the establishment and subsequently the amount of compensation that employees are entitled to. This can be 60%, 80% or 100% of average earnings. If there are trade unions in the company or if this is provided for by an internal regulation, the compensation may be different (e.g. 70% instead of 60%). As for whether we have more options under the Labour Code, if it does not matter why employees cannot work, we do not have an answer. The difference in wages paid and thus the direct impact on employees is fundamental. This is most likely because we have not had a similar situation in the last 30 years. The Labour Code should be modified in this regard. On a positive note, even these cases are covered by aid in the form of an "Antivirus" contribution decided by the government.

This is a relatively complex issue. We recommend that you always consult it with a company lawyer to ensure that the employer's procedure is in accordance with the Labour Code. Problems can be avoided in the future, even if only a minor mistake, will not give rise to the obligation to return the contribution. Many beneficiaries or companies using deductible items for research and development have already experienced this.