The implications of the Coronavirus on employee holidays abroad
Recent media reports highlight the legal uncertainties of employee summer vacations caused by the present COVID-19 crisis. Employers are anxious that their employees might import the SARS-CoV-2 virus into their business from abroad. This could result in a cluster of new infections – harming others and causing severe disruption to the business. As such, some employers are requiring travelling employees to complete a Coronavirus test upon their return, while others are pressuring their employees not to travel abroad at all.
Practical guidance by the Federal Ministry of Labour, Family and Youth
The Federal Ministry of Labour, Family and Youth has issued a brochure (in German) addressing some essential questions in this context. While this brochure was written in coordination with employer and employee organisations, it is not a legal document and thus cannot change or supplement the law. This precludes employers and employees relying upon it in the event of litigation before the employment court. However, due to the lack of case law in the area, the brochure provides a useful guideline as to the considerations employers and employees should make regarding this summer’s vacation period.
‘Travel warnings’ issued by the Federal Ministry for European and International Affairs
As a matter of principle, employees are not required to disclose their vacation destination to their employer. However, owing to their duty of loyalty, they must inform their employer upon request if they plan to or have previously travelled to a country with a high risk of infection of adisease – such as COVID-19. In practice, the so-called ‘travel warnings’ (in German) for specific countries or regions issued by the Federal Ministry for European and International Affairs on its website serve as a guideline. The ministry uses a scheme of six different levels of increasing health risk. At present, all EU countries are classified as level 4 (high security risk) due to the Coronavirus crisis, with some countries/regions (e.g. Portugal or Lombardy) falling into level 5 or 6 (travel warning). This list might be questioned however, as available medical data suggests that the risk of infection with Coronavirus is lower in some of these countries when compared to Austria. Outside of the EU there are 27 countries classified as level 6. These include the UK, Turkey and the United States. However, due to the fast-changing nature of the crisis, employees should check the ministry’s website on a frequent basis before travelling abroad.
What are the potential consequences of an employee travelling abroad for their vacation?
The most practical problem concerns the entitlement to payment if the employee falls sick due to an infection with Coronavirus or is subject to a stay-at-home order. Provided the employee would be unable to work (not even from home), the employer is only required to pay remuneration if the impediment to work has not been caused by the employee’s gross negligence (or intention). Here, the fault of the employee may only be determined by taking the circumstances of the individual case into account. For example, it will be highly relevant whether the employee travelled to a country/region classified as level 5 or 6. Employees travelling to such countries will bear the burden of proof that they have taken special precautions against Coronavirus infection if they are to defend themselves against the allegation of gross negligence.