The Covid-19 Resolution of 22 March 2021 and its implications for employers

The joint video conference of chancellor Angela Merkel and the ministers for the German states resulted in a resolution (“Resolution”) which, at least in part, will need to be implemented by further legislative action at both state and federal level. For employers, the following issues are of relevance:

May I open my business and have employees work during the extended rest period at Easter?

The Resolution defines 1 April 2021 and 3 April 2021 as “days of rest”. This is not a legal term, but the way the Resolution is drafted, it needs to be interpreted in a way that both days will be treated similar to public holidays. By default, working on public holidays is not allowed, unless the statutory exceptions provided in the Working Time Act apply. It is unclear at this stage whether these exceptions will apply in relation to 1 and 3 April 2021 as well. 2 April 2021 (Good Friday) and 5 April 2021 (Easter Monday) are public holidays anyway, so effectively there will be a shutdown of German public life for 5 days. Under the Resolution, only food retailers (a term which should be interpreted narrowly) will be allowed to open on 3 April 2021, but food retailers will need to remain closed on 1 April 2021. Details will be stipulated in laws to be implemented by the federal government and the individual states. Although there will be consultations between the states in the course of today (23 March) to ensure uniformity of the extended rest period at Easter, the regulations may differ from one state to the next. Only the law of the respective state will provide clear answers on how to deal with “days of rest”. For example, lots of employees will have scheduled vacation days on 1 April in order to enjoy a long weekend. If days of rest are treated as public holiday, this vacation day would need to be transferred to a later stage. Clarifying laws are expected in the next three days.

Am I obliged to allow my employees to work from home or provide tests for SARS-CoV-2?

The Resolution continues to urge companies to allow their employees to work from home whenever possible. Where working from home is not possible, companies should offer their employees a weekly test for SARS-CoV-2. For the time being, both items remain a non-binding recommendation. However, this could soon change. The current administration has instructed business associations to submit a report on the voluntary participation of companies and has already announced in the Resolution that it will decide on the basis of this report whether corresponding obligations of companies must be included in the Occupational Health and Safety Ordinance. The chancellor and ministers of the individual states will consult again on 12 April 2021 concerning this matter.

Conclusion

There is an emerging trend towards placing greater obligations on companies. Employers should prepare for this and – if they have not already done so – take appropriate measures to contain the pandemic as suggested. Furthermore, companies that are subject to the closure of shops and the prohibition of work on Sundays and public holidays should prepare for closure over Easter. We will keep you updated and report back as soon as the laws mentioned above are implemented.