The corona pandemic is still resulting in many restrictions in Germany. New questions are also constantly being raised in employment law due to the frequently changing regulations.
In our consulting work, we are also seeing time and again that the introduction of the 3G rules (vaccinated, recovered, tested) in the workplace creates potential for conflict between employers and employees.
We therefore want to shed light on the question of whether employees are still entitled to their wages if they do not comply with the 3G rules.
Entitlement to wages in the event of non-compliance with the 3G rule
If an employee does not comply with the current 3G rule at the employer’s premises, he/she cannot begin working. It must be clarified whether the employee is entitled to their contractual remuneration in this case.
In principle, the following policy applies in German employment law: “no work, no pay.” This policy is breached, for example, by paid vacation or continued remuneration in the event of illness. In both cases, the employee is (temporarily) not obliged to perform work but still retains their entitled wages.
Another exception to the “no work, no pay” policy is a default in acceptance by the employer. This is given if the employee offers his contractual output properly (i.e. at the agreed place of work at the agreed working time), but the employer does not accept this output.
Therefore, in such cases, it is necessary to consider whether the employee can provide his or her output capacity despite not presenting 3G proof or whether the employer does not accept the employee’s output offer.
Employees lose entitlement to remuneration
The better reasons are that the employee does not provide their work output properly because it is impossible for them to fulfil the work output for legal reasons (namely the lack of 3G proof). Therefore, the employer is not in default of acceptance according to § 297 of the German Civil Code (BGB). Consequently, the employee fundamentally loses their entitlement to remuneration.
WINHELLER advises companies on all wage issues
Do you have questions about the 3G rule in your company? Do you want to avoid mistakes and act in a legally secure manner? Our attorneys for German employment law will be happy to assist you! Come to us with your questions any time.
Coronavirus: Mask Mandate in The Workplace in Germany