10.6092/issn.1561-8048/10768
The corona pandemic raises a vast range of legal issues. From the labour and social law perspective, some of them are of downright existential importance for the employees and enterprises affected. Various legislative support measures have been adopted through the "social protection packages I &amp; II". Especially the provisions on short-time work, which were immediately adjusted to the current crisis, attempt to address the financial risks for enterprises and employees. Support is also given to particularly strongly affected professions such as the (solo)self-employed persons. Moreover, virtual works council meetings and "online-courts" are enabled by several legislative actions. As slaughterhouses have emerged as coronavirus hotspots, the Government currently envisages a sector-specific ban on subcontracts to combat the misdevelopments in the meat industry.
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Jonas Walter Kühn
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Ban on temporary agency work and subcontracts
COVID-19 and Labour Law: Germany
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2020-04-13
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2020-09-15
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Jonas Walter Kühn
2020/04/15
10.6092/issn.1561-8048/10768
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Ban on temporary agency work and subcontracts
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COVID-19 and Labour Law: Germany
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COVID-19 and Labour Law: Germany                                                Italian Labour Law e-Journal
Rüdiger Krause, Jonas Walter Kühn                                              Special Issue 1, Vol. 13 (2020)
lehrstuhl.krause@jura.uni-goettingen.de                          Covid-19 and Labour Law. A Global Review
jonaswalter.kühn@jura.uni-goettingen.de                                                      ISSN 1561-8048
                                                              https://doi.org/10.6092/issn.1561-8048/10768




                  COVID-19 and Labour Law: Germany
                        Rüdiger Krause, Jonas Walter Kühn *

                                                Abstract

     The corona pandemic raises a vast range of legal issues. From the labour and social law
     perspective, some of them are of downright existential importance for the employees and
     enterprises affected. Initial support measures have already been adopted through the
     government's "social protection package". Especially the regulations on short-time work,
     which are immediately adjusted to the current crisis, attempt to address the financial risks for
     enterprises and employees. Support is also given to particularly strongly affected professions
     such as the (solo)self-employed persons. Moreover virtual works council meetings will be
     enabled and a debate on the establishment of "online-courts" started.
     Keywords: Covid-19; Labour Law; Short-time work; Care responsibility compensation; Virtual
     works council meetings; Online-courts



 1. General Framework.


     Even though no national health emergency has been explicitly declared in Germany,
 some quite far-reaching restrictions have already been put in place to curb the further
 spread of the COVID-19 disease. On March 22nd 2020 the Federal Government and the
 Minister-Presidents of the federal states agreed on a uniform approach aimed at limiting
 social contact in the public area1. In addition to the new limitations to freedom of
 movement based on section 28(1) Infection Protection Act (IfSG)2, the restrictions on
 public life have also brought the whole economic sector grinding to a halt. As a legislative
 counteraction, certain laws specifically tailored to the crisis have already been passed at the
 federal level, such as the ban on the termination of tenants who are in financial difficulty
 due to the pandemic3. From the labour law angle, the so-called "social protection package"4
 is particularly noteworthy. Besides facilitating access to social security benefits, one of the
 purposes of this law is to create incentives to work in system-relevant areas5 by

 *
   Rüdiger Krause, Professor in Labour Law, Institute for Labour Law, Georg-August-University Göttingen,
 Germany; Jonas Walter Kühn, Assistant Researcher, Institute for Labour Law, Georg-August-University
 Göttingen, Germany.
 1-https://www.bundesregierung.de/breg-de/themen/coronavirus/besprechung-von-bundeskanzlerin-

 merkel-mit-den-regierungschefinnen-und-regierungschefs-der-laender-zum-coronavirus-1733266.
 2 BGBl. 2020, part I, p. 590.
 3 BGBl. 2020, part I, p. 573.
 4 BGBl. 2020, part I, p. 575.
 5 See BT-Drs. 19/18107, p. 26 for an enumeration of the branches and professions considered essential.
 Rüdiger Krause                                                                   Italian Labour Law e-Journal
 Jonas Walter Kühn                                                               Special Issue 1, Vol. 13 (2020)
                                                                    Covid-19 and Labour Law. A Global Review
                                                                                      Section: National Reports




momentarily raising the supplementary income limit for pensioners and temporarily
removing the crediting of income from jobs taken up during short-time working.
Furthermore, the Federal Ministry of Labour and Social Affairs (BMAS) in accordance with
the Ministry of Health (BMG) may allow exceptions to the provisions of the Working
Hours Act in extraordinary emergencies with nationwide implications by legislative decree.
Such a decree has been passed on April 7th 20206.


2. Specific Measures.

   With the well-established short-time work scheme, German law provides the option for
enterprises in economic difficulty to reduce the working time of employees (if allowed by
an individual or collective agreement) instead of terminating them and thus to achieve
economic relief by lowering or even abandoning personnel costs. Under certain conditions,
the affected employees are entitled to social security benefits (technically paid by the
employer who can reimburse his expenses from the labour administration) in order to
compensate for the net income loss (60 per cent respectively 67 per cent). This mechanism
seeks to avoid unemployment and to secure a well-rehearsed workforce7. As a model, this
instrument has already been successfully tested from 2009 to 2011 in the aftermath of the
global financial crisis of 2008/2009 with a peak of 1.5 million short-time workers back
then8. However, current forecasts expect between 2.3 and 5 million short-time workers. As
stated by the Federal Employment Agency, until April 6th 2020 as many as 650,000
notifications of short-time work have been submitted by enterprises at the local
employment agencies9. Based on Section 109 (5) of the Social Security Code III (SGB III),
the BMAS has now facilitated the access to short-time work compensation by legislative
decree (KugV)10. Along with the reimbursement of social security contributions paid to the
employers, extending short-time work to temporary employees is significant11.
   With the new section 56(1a) IfSG12, the legislator has also created financial relief for
employees affected by the closure of schools and childcare facilities. In principle, even in
times of pandemic, the employer must pay remuneration if no work can be performed due

6-https://www.bmas.de/SharedDocs/Downloads/DE/PDF-

Gesetze/arbeitszeitverordnung.pdf;jsessionid=8ADCFB03E074957BC9EDD8912D46FB1E?__blob=public
ationFile&v=2.
7 There is also an economic aspect: According to a recent study, the decline in economic output in Germany

with short-time work was around 45 per cent less in comparison to a scenario without this instrument.
https://www.zeit.de/wirtschaft/2020-04/kurzarbeit-coronavirus-pandemie-wirtschaftseinbruch.
8 In that time, the maximum period for receiving short-time work compensation was increased from 12

months (section 104(1) SGB III) to 24 months, BGBl. 2009, part I, p. 1223. To date, the Federal
Government has not yet made use of this authorization in section 109(1) no. 2 SGB III in the corona crisis.
9 https://www.arbeitsagentur.de/presse/spr-2020-22-anzeigen-kug-waechst-weiter-dynamisch.
10 BGBl. 2020, part I, p. 595. The legal basis for this is the Act on the temporary crisis-related improvement

of the Regulations for Short-Time Work Compensation, which was passed on March 13th 2020, BGBl. 2020,
part I, p. 493.
11 Section 3 KugV. Here too, the legal basis (section 11a Temporary Work Act) was established by the Act on

the temporary crisis-related improvement of the Regulations for Short-Time Work Compensation.
12 BGBl. 2020, part I, p. 590.



https://doi.org/10.6092/issn.1561-8048/10768                                                                   2
     Rüdiger Krause                                                        Italian Labour Law e-Journal
     Jonas Walter Kühn                                                    Special Issue 1, Vol. 13 (2020)
                                                             Covid-19 and Labour Law. A Global Review
                                                                               Section: National Reports




to circumstances for which neither he nor the employee is responsible (Betriebsrisiko,
section 615 sentence 3 Civil Code). However, if it remains possible in principle to perform
the work and the employee is just unable to do so because of his or her care
responsibilities, the employee is only entitled to remuneration for a relatively insignificant
period (section 616 Civil Code). In such a constellation, the employee can now claim
compensation, which is paid by the employer on behalf of the competent authority. This
supplements the section 56(1) IfSG stating that employees who suffer a loss of earnings
because of an imposed employment ban or quarantine receive compensation.
   To secure the economic existence of micro-enterprises and self-employed persons,
emergency financial aid has been made available, which is non-repayable and can be easily
applied for online13. Furthermore, special bonuses for employees up to an amount of 1,500
Euros will also be exempt from tax and social security contributions in 202014.


3. Social Partners’ Impact.

    The social partners and works councils have a crucial role in dealing with the current
situation. For example, the Federal Government consulted trade union and employers’
association representatives immediately before the draft law on the “social protection
package”15. Moreover, on March 13th 2020 the top-level representatives of the social
partners published a statement on taking common responsibility and putting aside their
different views during the crisis16. As short-time work cannot be ordered one-sidedly by the
employer, it is often collective agreements and works agreements that make short-time
work possible in an uncomplicated manner. Moreover, in many enterprises, the short-time
allowance paid by the labour administration is increased through additional payments to
the employees on the grounds of collective agreements, works agreements or unilaterally in
order to reduce their loss of wages. Furthermore, the social partners of the metal and
electro industry, which is crucial for the German economy, agreed on a non-increase of
salary for this year ("zero-round") to secure employment and also to provide additional
leave days for employees with young children. Finally, on April 6th 2020, the social
partners of the care sector agreed on bonuses for care workers amounting to 1,500 Euros.


4. Pending Issues.

   Even in times of a pandemic, the works council is entitled to mandatory co-
determination rights, for example, in the area of occupational health and safety17.

13 https://www.bmwi.de/Redaktion/DE/Downloads/E/eckpunkte-corona-soforthilfe.
14 Please visit the following link:
 https://www.bundesfinanzministerium.de/Content/DE/Pressemitteilungen/Finanzpolitik/2020/04/2020-
04-03-GPM-Bonuszahlungen.html.
15 https://www.tagesschau.de/wirtschaft/coronakrise-wirtschaft-105.html.
16 https://www.dgb.de/presse/++co++6f58fa66-652b-11ea-833c-52540088cada.
17 Cf. section 87(1) no. 7 Works Constitution Act (BetrVG).



https://doi.org/10.6092/issn.1561-8048/10768                                                            3
     Rüdiger Krause                                                              Italian Labour Law e-Journal
     Jonas Walter Kühn                                                          Special Issue 1, Vol. 13 (2020)
                                                                   Covid-19 and Labour Law. A Global Review
                                                                                     Section: National Reports




Nevertheless, works councils' activities have raised some questions and uncertainties. The
prevailing opinion suggests that decisions of works councils are only valid if they are taken
in the personal presence of the works council members18. In times of video conferencing
tools, the sword of Damocles is therefore currently hanging over its decisions as to formal
legitimacy. Regardless of whether such an interpretation of the law is mandatory, on April
9th 2020 the Government adopted a draft bill on an amendment of the Works
Constitutions Act which shall allow works councils to take decisions by video or telephone
conferencing19. This regulation is to enter into force retroactively from March 1st 2020 and
be limited in time until December 31st 2020. It is expected that the German Parliament will
pass that Act directly after Easter.
    However, the use of digital infrastructure is also essential in a different context. No
clairvoyant skills are needed to predict that the current situation will be followed by many
labour court proceedings. A legislative proposal sensational for German procedural law
could provide a remedy here. Essentially, this would result in an amendment to the Labour
Court Act empowering the Labour Courts to order oral proceedings using video and sound
transmission ("online-courts") for the sake of protection against infectious diseases20. It
remains to be seen whether there will be such a far-reaching development. Nonetheless,
the courts' digital infrastructure as a potential pitfall could also thwart the approach just
mentioned.
    Furthermore, the debate about the balance between data protection and health
protection aspects, such as the use of mandatory apps to trace infection chains, is proving
to be terra incognita. Transferred to the employment situation, the conflict between the
employer's duty of care and the protection of the employee's personal sphere must also be
carefully reconciled here – a task that has not yet been tackled entirely. In this respect, it is
still necessary to monitor the ongoing development from the perspective of labour law.




Copyright © 2020 Rüdiger Krause, Jonas Walter Kühn. This article is released under a
Creative Commons Attribution 4.0 International License




18 Section 33(1) sentence 1 BetrVG.
19 https://www.bundesregierung.de/breg-de/aktuelles/betriebliche-mitbestimmung-1739914.
20 https://www.faz.net/aktuell/wirtschaft/digitec/corona-arbeitsrichter-fordern-verfahren-per-video-schalte-

16709107.html?premium;-https://www.zpoblog.de/arbeitsgerichte-online-courts-videokonferenz-
oeffentlichkeit-remote-courts/.

https://doi.org/10.6092/issn.1561-8048/10768                                                                  4
