Germany Update: Employer’s liability in connection with corona infections of employees

While the restrictions due to the corona pandemic have expired, at least for the time being, the labour courts are reaching more and more labour law issues in this context. Two courts recently had to rule on claims for damages by female employees who claimed that the employer had violated Corona requirements.

No liability of the employer according to the ArbG Siegburg

Urt. v. 30.3.2022 – 3 Ca 1848/21

In the case of the ArbG Siegburg, the plaintiff claimed that in the course of her work as a nurse in psychosocial care, a corona infection had occurred due to a lack of corona protective equipment. On 08.04.2020, the plaintiff tested positive for Corona for the first time and was admitted to a hospital as an inpatient. She subsequently had to be put into an artificial coma, intubated and ventilated until 25.05.2020. In addition to the plaintiff, 12 residents had also been infected with Corona, of which three died. With the lawsuit, the plaintiff now sought reimbursement of the medical treatment costs, loss of earnings and compensation for pain.

The lawsuit was unsuccessful. According to the assessments of the ArbG Siegburg, the plaintiff could not sufficiently demonstrate that a breach of duty by the employer had become the cause of her illness. It cannot be established with certainty that the applicant was infected at her place of work. A medical certificate showing that the plaintiff was infected at the workplace and the BGW’s classification of the corona infection as an occupational disease do not change that assessment. On the one hand, they do not have a binding effect and, on the other hand, it is incomprehensible how the doctor or BGW claims to have arrived at that assessment, since they hardly accompanied the plaintiff around the clock during the period in question and the plaintiff could also have been infected outside the workplace.

If it is already not clear when exactly the plaintiff has infected whom, it is also not possible to determine whether the defendant’s alleged breaches of duty, even if one assumes such, has become the cause of her own illness. Liability is therefore excluded.

Liability of the employer according to the LAG Munich

Urt. v. 14.2.2022 – 4 Sa 457/21

In a second decision, the LAG Munich dealt with the compensability of frustrated expenses for a wedding, which had to be canceled due to a corona quarantine of the bride.

Although he had cold symptoms, the managing director of the defendant drove several times with the employee, the later plaintiff, together in a car without observing the required minimum distance or wearing a mouth guard. When the managing director was diagnosed with a corona infection a few days later, the employee had to go into quarantine as a contact person due to a quarantine order from the health department and was consequently forced to cancel her wedding celebration. With the action, it seeks reimbursement of the expenses that have now become useless as a result of the cancellation.

The plaintiff was successful. The LAG München awarded her damages because the defendant had violated the duty of care incumbent on it under § 241 sec. 2 BGB by its managing director. The managing director violated the SARS-CoV-2 occupational health and safety rule in the version at the time, according to which the working environment was to be designed in such a way that safety distances of 1.5m could be maintained and every person should stay at home in case of symptoms of illness. In contrast to the facts of the case first presented, the lack of causality there was not a problem in the present case. If the managing director had maintained the minimum distance to the employee or had not even appeared to work, no quarantine order would have been issued. An actual infection of the employee was not important here.

Importance for practice

The two decisions issued exemplify which liability issues can arise in connection with corona infections and how they are to be assessed. Liability on the part of the employer can only be considered if the employer’s breach of duty was the cause of the damage incurred. The employee bears the burden of proof that the employer’s violation of duties of care has led to his corona infection. The complete provision of this evidence is likely to be difficult for the employee on a regular basis, as it is rarely clear where and when an infection has taken place.

It is also important to note a possible privilege of the employer, which results from the regulations of the statutory accident insurance. Even if the causality of the breach of duty for the damage can be proven, a contractual or tortious liability of the employer according to § 104 sec. 1 sentence 1 SGB VII is completely excluded if the personal injury is classified as an insured event (accident at work or an occupational disease) and the employer has not caused it intentionally. In principle, an infection with Covid-19 does not constitute an accident at work, but rather creates a general danger that is not job-specific. Exceptionally, an infection may meet the requirements of an occupational disease if the employee concerned performs activities within welfare care, in the health service or in a laboratory or similar, for example, and is therefore particularly exposed to the risk of infection in his insured activity.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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