The new Corona Warning App and its legal implications for employment law

The new Corona Warning App launched in Germany on Tuesday June 16th , 2020 and had already been downloaded nearly 6,5 million times as of the next morning.

How does the App work?
According to the information released by the German government, the app uses Bluetooth technology to measure the distance and duration of encounters between people who have installed the app. The smartphones “remember” encounters when specific criteria for distance and time are met. Then the devices exchange random codes with each other. If people who use the app test positive for the corona virus, they can voluntarily inform the app. The random codes of the infected person are then made available to all persons using the Corona Warning App. The German government ensures this procedure does not allow conclusions to be drawn about the identity of the user or the location.

Can employers instruct employees to install and use the Corona Warning App?
To answer this question one generally needs to differentiate between company phones and private phones.

Company phones
Employers have a general right to issue directives to their employees. Employers can therefore instruct their employees to download the Corona Warning app on a company phone that is solely used for business purposes. The employer can determine how the equipment he provides is to be set up.
With regard to a mandatory use of the app this is not as clear. While there are good arguments -with regard to the general obligation of care of employers for the health and safety of their employees- that employers should be able to instruct their employees to use the app if this is strictly limited to business hours, this is cannot be said for sure. There is no case law on this so far and it is not certain how courts would decide on this matter. A prerequisite would be in any case that the use of the app in the business context does not interfere with the personal rights of the employees. This would also mean that once the employees leave work the company phone can be switched off and the employee would not need to use the app anymore. Only in very exceptional cases could mandatory use of the Corona Warning App outside of work be considered. This could be the case, for example, for employees in the care or health sector who are in unavoidable contact with patients. In this case the protection of others – especially in the case of high risk patients – may outweigh the personal rights interests of the employees. What is certain is that this bears high potential for future court cases. As of now employers are therefore well advised to only strongly recommend the use of the app to their employees and offer information if employees are concerned about certain features of the app.

Private Phones
Neither the installation nor the use of the Corona Warning App on employees’ private mobile phones can be instructed by the employer. The employer cannot intervene in the private sphere of the employee.

What does it mean if the app gives out a warning?
Many employers will wonder whether their employees can stay home if the app alerts them that they potentially had contact with an infected person and if they will receive continued remuneration in such a case. The German government explicitly denies this on their Corona App information website. The mere warning by the app is not sufficient to be used as certificate of incapacity to work but serves as an indication to contact the health authorities. The employee may take sick leave and, based on this, is entitled to continued remuneration only if a Covid-19 test is positive (and/or the employee has symptoms). The employee is also entitled to continued remuneration in case of officially ordered quarantine.

Is there an obligation of the employee to notify the employer of a warning by the app?
Generally employees do not have to inform their employers about the specific reason for their incapacity to work. However, due to the high infection rate of the corona virus and the severe dangers that come with an infection employees have a responsibility to inform their employer in case of a positive Covid-19 test result. It is questionable if this also applies to a warning by the app. A notification obligation could potentially arise from section 16 of the German Work Protection Act. This states that employees shall immediately notify their employer or the competent superior of any immediate serious risk to safety and health which they have identified. Since a warning by the app is only an indication that the user of the app potentially had contact with an infected person this will potentially not be considered an immediate and serious risk in the sense of section 16. The question whether the employee is obliged to inform the employer will also depend on the warning level. The higher the risk is as indicated by the app, the more immediate and serious is the danger for other employees.
Employers can of course appeal to their employees that they provide such information on a voluntary basis. In this case they should ensure that data protection laws are strictly obeyed and no negative consequences will be drawn if an employees refuses to give out such information.

Can the employer ask an employee about warnings by the app?
The employer is allowed to specifically ask an employee whether a Covid-19 infection was confirmed via a test due to the employer’s general obligation of care towards his other employees. However, as mentioned before, since the warning through the app is a mere indication that an employee might have been exposed to an infected person this will likely not be enough for an employer to (regularly) ask about warnings let alone gain access to the app installed on a company phone and to check whether the employee in question has received a corresponding warning.

What is the role of the works council with regard to the app?
In many German companies a special form of employee representation – the works council- exists. The works council has broad participation/ co-determination rights with regard to several different topics. With regard to (mandatory) use of the app in the work field such rights might be invoked according to section 87 No. 1 (questions concerning the organisation of the establishment and the conduct of employees in the company) and section 87 No. 7 (regulations on the prevention of occupational diseases and on health protection within the framework of statutory regulations ) of the Works Constitution Act. Potentially if use is made mandatory also participation rights according to section 87 No. 6 (the introduction and use of technical devices designed (able) to monitor the behaviour or performance of workers) can be considered. The works council’s right can be safeguarded by concluding a works agreement on the use of the Corona Warning App. This way the interests of the employees in the protection of their personal rights on the one hand and the interests of the employer in efficient health protection measures in the company can be combined.