Suspending salary during quarantine

(Stand: 23. November 2021)

German giants, FC Bayern München, have reportedly decided to suspend salary payments to staff, including their players, who are not vaccinated and must quarantine because of coming into close contact with someone infected with covid. The most prominent casualty is key player, Joshua Kimmich, who is currently in quarantine for the second time in a month after coming into contact with a person that tested positive for Covid-19.

This step may seem draconian but is likely to be legally permissible.

From a German employment law perspective, there are two distinct questions to address:

  • is the employer allowed to stop paying salary to an employee who has decided independently not to get vaccinated, is quarantined?
  • are there any measures available to employers to prevent this situation from happening at all?


No entitlement to be paid salary

The employer, in this case FC Bayern München, is not required to continue paying an employee who is quarantined and not vaccinated. This is anchored in statutory law.

The German Continued Remuneration Act (Entgeltfortzahlungsgesetz - EFZG) states that the employer must continue the payment for up to six weeks if the employee is unable to work due to illness. However, in our scenario the quarantine is ordered as a precautionary measure and not because the employee already tested positive or shows signs of Covid-19. Therefore, the requirements, especially the criterion “illness”, are not met.

Furthermore, the German Civil Code (Bürgerliches Gesetzbuch - BGB) is no defence for the employee. According to this provision, the employee retains his/her salary claim during a time in which s/he is prevented from performing his/her duties due to a “personal reason” for which s/he is not responsible. Another requirement is that is must be only a temporary prevention. However, a quarantine, normally lasting 14 days, is a significant prevention to which sec. 616 of the German Civil Code will likely not apply.

If the employer is not required to continue the salary payments, the German Infection Protection Act (Infektionsschutzgesetz- IfSG), among other things, provides for compensation if the salary loss is due to a quarantine order. The employer must pay this contribution to the employee but can seek reimbursement from the competent authority. However, this claim is excluded if the respective employee could have avoided the quarantine by getting a vaccination that is prescribed by local law. The health ministers concluded on 22 September 2021 on a consistent implementation of this regulation at the latest by 1 November 2021. Consequently, the exclusion also applies to the Covid-19-vaccine if there is a public recommendation in favour of it.

Alternative measures for clubs

Looking to the future, clubs will likely consider other measures to avoid a dilemma which may run well into the current season. One approach might be the implementation of internal rules allowing players to compete in the games only if they are vaccinated (“2G” in competition) which would effectively be an indirect obligation to get vaccinated.

Outlook

FC Bayern München have become the centre of attention once again, this time for matters off the pitch. It will be fascinating to follow whether the players contest the legality of the salary suspensions, whether they cave into the increasing pressure to become vaccinated and not least whether team morale is affected and translates into poorer pitch performance.