As of Tuesday, June 29, 2021, at 00:00, Portugal and the Russian Federation are among the so-called "virus variant areas". The Federal Foreign Office had already announced on June 25, 2021 that Portugal would be declared a risk area due to the high prevalence of SARS-CoV-2 variants. With this classification, new rules will come into force from Tuesday. The quarantine obligation in particular, which is 14 days for all travelers returning from a virus variant area, is likely to raise questions for many employees and employers: Do I have to work from home during quarantine? Will I continue to receive a salary if I have to go into quarantine due to travel?
Can employers order home office for travel returnees in quarantine?
Anyone who is in quarantine but healthy can be instructed to work from home during this time. The prerequisite for this is that the technical and local conditions are in place. Employees who, for example, are looking after small children at home due to quarantine or do not have a suitable workplace cannot reasonably be expected to work from home. Employees can also refuse this instruction if the technical equipment at home is unsuitable. Conversely, there is no legal right to work from home. Anyone returning from a risk area cannot insist on working from home. As a rule, however, it is in the interest of both parties that those who wish to do so can also work from home. It is advisable to contact each other at an early stage and make clear arrangements.
Will I still get paid if I have to go into quarantine?
Anyone working from home during quarantine is still entitled to continued payment of wages. Since the work is performed as owed, the entitlement to wages is maintained. If this is not possible, e.g. for the reasons mentioned above, it depends on other circumstances. Currently, many vacationers will return and have to go into 14-day quarantine who did not know at the start of their trip that the vacation destination would be upgraded to a risk area with a corresponding quarantine obligation. Section 56 (1) IfSG provides for compensation for this "involuntary" loss of working hours. In concrete terms, this means that employees continue to receive their full salary for the duration of the quarantine, up to a maximum of six weeks. The compensation is paid by the employer.
However, anyone who travels to a risk area after the Foreign Office's travel warnings become known and has to go into officially ordered quarantine on their return is not entitled to compensation under Section 56 (1) sentence 3 IfSG. This states that compensation is not paid to anyone who "could have avoided a ban on carrying out their previous activity or isolation by not traveling to a risk area that was already classified as such at the time of departure." Accordingly, there is no obligation for employers to pay this compensation in these cases. There is also no entitlement to wages, as the work was not performed.
What should employers do if it is unclear whether they are entitled to compensation under Section 56 (1) IfSG?
If there is any doubt about the reimbursability of the compensation payment, employers should first apply to the competent authority for an advance payment in accordance with Section 56 (12) IfSG. If the authority rejects this and there is a possibility that the employee is at fault, employers should also consider carefully whether to pay out the compensation. A possible solution here would be special agreement that includes a claim for repayment by the employer if the claim for compensation payment is subsequently rejected.
