No More Mandatory Quarantine for COVID-19 – What Are the Implications for Labor Law?

In November, several federal states decided to lift the mandatory isolation requirement for individuals infected with SARS
–CoV
–2
. Employees in Bavaria, Baden-Württemberg, Hesse, and Schleswig-Holstein who are infected with COVID-19 will no longer be required to stay away from work. Infected individuals are only required to wear an FFP2 mask. For medical personnel, the work ban remains in effect in the event of a COVID-19 infection. How should the lifting of the isolation requirement be assessed under labor law?

What applied previously

Under the Infection Protection Act (IfSG), individuals infected with COVID-19 were required to self-isolate at home for at least five days after receiving a positive test result. This requirement expired if they remained symptom-free for at least 48 hours after the five-day period had elapsed. However, the mandatory five-day isolation period also applied to those who showed no symptoms from the outset. With infection rates declining overall, the previous government-mandated requirement for home isolation put many companies and institutions in a bind, as it led to staffing shortages.

Lifting of the Isolation Requirement in the Workplace

Now the situation has changed: Anyone who tests positive for SARS–CoV–2 is still permitted to leave their home and go to work. However, a mask must be worn. In medical facilities, there is generally a ban on entry for those who have tested positive; nevertheless, those who have tested positive may now be employed in hospitals, rehabilitation facilities, or emergency medical services, provided they are not assigned to areas with vulnerable groups.

Consequences under labor law

The following changes in labor law now result from the removal of the isolation requirement:

• Employees infected with COVID-19 may be required by their employer to come to work. If an employee reports sick, the employer may request a medical certificate of incapacity for work issued by a doctor.
• The employer may ask employees infected with COVID-19 not to come to work; however, the employer must then fulfill its obligation to continue paying wages during the employee’s absence if the employee offers to work and the employer refuses this on the grounds of occupational safety.
• The employer is permitted to issue a binding instruction to employees who believe they are infected to wear a mask at work and to keep their distance from coworkers as much as possible.
• Obtaining infection data from employees remains possible only if the employee expressly and voluntarily gives their consent.

Assessment

After more than two years in which society has been partially paralyzed by numerous restrictions, it seems time to no longer classify the COVID-19 infection as a pandemic or epidemic, but rather as an endemic event. The elimination of the isolation requirement seems to be a step in the right direction—instead of relying on government regulation, the focus is now on people’s personal responsibility. Those who test positive for COVID-19 and stay home with a doctor’s note if they have symptoms are acting responsibly. The rest—those who are healthy or asymptomatic but have tested positive for COVID-19—go to work (wearing a mask). This is in the interest of both employers and employees, who would otherwise have to make up for the absences caused by their colleagues.