Corona pandemic-related continued payment of wages: competition for claims | Right

There are different legal positions on the legal classification of the relationship between the employee’s right to continued payment of salary in accordance with § 3 of the Act on late pay and the claim for compensation pursuant to § 56 of the IfSG. In cases where the employee falls ill with Cov-19 and is prohibited from working at the same time, the right to continued payment of salary in case of illness competes with the right to compensation according to § 56 IfSG. There is no legal regulation of the competitive relationship between these claims.

Divergent views on competing demands

Due to the term “loss of earnings” some consider the compensation claim under the IfSG to be compared to continued payment of wages subsidiary company, others claim exactly the opposite. According to the prevailing view, there is no right to continued payment of salary official ban on employment (quarantine order)because then the employment ban and not the employee’s (presumed) illness is for it inability to work causally is. But the details are disputed. Equally controversial is the question of whether, according to the business risk theory, a company closure is within the entrepreneur’s risk area, and whether the employees’ claim for remuneration therefore remains.

The compensation claim according to § 616 BGB is intended to replace a compensation claim

Some administrative courts have already dealt with the competing claims between them sickness compensation and the right to continued payment of salary acts. The Lower Saxony Higher Administrative Court (OVG) has decided that the right to continued payment of wages in the event of a temporary hindrance to work through no fault of your own in accordance with § 616 BGB compared to the compensation claim pursuant to § 56 IfSG is not a subsidiary, but takes precedence over it. According to this, the employer has no claim to reimbursement according to § 56 IfSG, if the employee is entitled to continued remuneration according to § 616 BGB (Niedersachsen OVG, decision of 1 July 2021, 13 LA 258/21).

Precedent Tönnies in NRW

VG Minden has recently dealt with the conditions for compensation pursuant to § 56 IfSG regarding an application by the meat producer Tönnies for reimbursement of the continued salary of an employee for a period when he was in an officially ordered quarantine without himself suffering from Covid-19 to have been. In 2020, the plaintiff’s meat processing company experienced a major outbreak of the corona virus, so the company had to temporarily close completely.

Quarantine for being unable to work when the business is closed is not causation

VG has them Compensation claim rejected. In the chamber’s view, the conditions for compensation according to § 56 IfSG were not met. The provision requires, among other things, that an employee prevented from performing his work as a result of his isolation or quarantine be. However, the isolation is not causal when a complete closure of the company is imposed to prevent work, since the employee in question would not have been able to perform his work in this case anyway (VG Minden, judgment of 20 September 2022, 16 K 1086/21). VG Karlsruhe ruled similarly in the case of the termination of hotel operations due to the pandemic (VG Karlsruhe, judgment of 20 June 2022, 14 K 480/21).

Quarantine without plant closure triggers a claim for compensation

Both VG Münster and VG Minden have several times upheld the butcher Tönnie in the case of official quarantine orders without simultaneous business closures (VG Münster, judgment of 5 May 2022, 5a K 854/21). At the administrative courts in Minden and Münster alone, approx. 7,000 lawsuits for compensation according to the IfSG pending.

There are still many unanswered questions in the relationship between labor law and infection protection

The large number of pending court cases at national level and the administrative court’s decisions, most of which are not yet final, clearly show that there are still many unanswered questions in the relationship between public law, infectious disease compensation claims and labor law rules on continued payment of wages. and urgently require a decision from the highest court or clarification requires the legislature.

Leave a Comment