Landmark ruling by the BAG: Continued payment of wages in the event of a coronavirus infection and official order to self-isolate – also for unvaccinated persons

Facts

The plaintiff works as a production employee at the defendant. He had not been vaccinated against Covid-19 and tested positive for the virus on December 26, 2021. For the period from December 27 to December 31, 2021, the plaintiff, who suffered from the typical symptoms, was issued a medical certificate of incapacity for work. The defendant continued to pay remuneration for this period. On December 29, 2021, the municipality in which the plaintiff lived issued an order instructing the plaintiff to self-isolate at home until January 12, 2022. For the period from January 3 to January 12, 2022, the doctor refused to issue a follow-up certificate of incapacity for work on the grounds that the positive test result and the self-isolation order were sufficient proof of incapacity for work. The defendant refused to continue paying the plaintiff’s wages from January 2022 onwards, as no proof of continued incapacity for work had been provided and the employee was also to blame for his infection because he had not been vaccinated. The plaintiff did not want to accept this and filed a lawsuit claiming around EUR 1,000.00 gross in continued remuneration which was ultimately successful.

Legal appraisal

The Federal Labor Court found that, due to the SARS-CoV-2 infection, the plaintiff was unable to perform his work as a result of incapacity to work due to illness, without it being relevant whether he had continuous symptoms of COVID-19. The isolation order was not an independent, parallel cause of incapacity for work; rather, the resulting ban on work was based precisely on the infection. This had made it legally impossible for him to perform the work owed, which could also not be performed in the home office. It was irrelevant that the plaintiff had not undergone the recommended vaccination. Even though this constituted a breach of the conduct to be expected of a reasonable person, the risk of breakthrough infections should also be correctly taken into account in the causality test. Even with an existing vaccination, an infection could not have been ruled out. The defendant was therefore not entitled to refuse performance due to the employee’s failure to submit a certificate of incapacity for work, as the plaintiff had proven, in another suitable manner, that he was objectively prevented from performing his work as a result of his infection by submitting the administrative order.

Even if Covid-19 related decisions have become less important in the meantime, a fundamental clarification on the classification of official isolation orders for employees who cannot perform their work from home is interesting and welcome in the case of infections even without symptoms and without prior vaccination.