Does the employer have to continue paying wages if an employee is in quarantine after a positive corona test and therefore cannot come to work? What role does the employee’s vaccination status and a sick note play?
The coronavirus pandemic is over, but the courts are still dealing with the legal issues associated with it. It often takes several years for a case to go through the courts and for a supreme court decision to be made. In March, the Federal Labor Court (BAG) made a fundamental decision on continued payment of wages during an officially ordered quarantine due to a (symptom-free) coronavirus infection (March 20, 2024, 5 AZR 235/23).
Without AU certificate: The plaintiff, who works as a nursing professional in a care facility and has not been vaccinated against the SARS-CoV-2 virus, was diagnosed with the virus on November 5, 2021. Due to an official order, she had to go into quarantine at home until November 18, 2021. The nursing professional did not submit a sick note. The infection was asymptomatic. From November 16, 2021 to November 20, 2021, the plaintiff took part in an online course. With the payroll for November, the employer deducted the wages for the period from November 6 to November 15. In the employer’s opinion, there was no entitlement to continued payment of wages due to the lack of a sick note and the lack of vaccination.
Failure to vaccinate: In the first two instances, the nurse lost her claim. However, the Federal Labour Court awarded the plaintiff continued payment of wages in accordance with Section 3 Paragraph 1 Sentence 1 of the Continued Payment of Wages Act (EFZG). According to Section 3 of the EFZG, employees are entitled to continued payment of wages if they are prevented from performing their work through no fault of their own as a result of illness. According to the Federal Labour Court, a SARS-CoV-2 infection is an illness in this sense, regardless of the need for treatment. In principle, in order to be entitled to continued payment of wages, the inability to work due to illness must be the sole cause of the inability to work. The Federal Labour Court made it clear that inability to work also exists if the employee cannot perform work due to the illness for legal reasons, be it due to an employment ban or a quarantine order. The Federal Labour Court answered the question of whether the failure to receive a vaccination constitutes fault that excludes the right to continued payment of wages in the negative. At the time of the plaintiff’s corona infection, there had been vaccination breakthroughs even among fully vaccinated people, so it cannot be determined that a vaccination would have prevented the infection and thus the plaintiff’s inability to work. The employer was also not allowed to refuse continued payment of wages due to the lack of a sick note. There is no need to submit it if the inability to work due to illness is undisputed. The proof of the inability to work due to illness was in the quarantine order.
