The Expert Council for Consumer Affairs (SVRV), which advises the Federal Ministry of Justice, calls for the creation of a legal basis for the Corona warning app. Regardless of this, the question arises as to whether companies can require their employees to use them due to their obligations under the employment relationship. We asked Michael Fuhlrott, lawyer and professor of labor law at Fresenius University of Applied Sciences, about the state of affairs.
The processing of personal data, especially as in the present case of specially protected health data (Article 4 No. 15, Article 9 GDPR), always requires a permit under data protection law (Article 6 GDPR). “In labor law, this can be a legal regulation, a company agreement or the consent of the employee,” says labor lawyer Fuhlrott.
The Federal Data Protection Act, which specifies the data protection requirements in the employment relationship in section 26, allows the employer to process personal data insofar as this is necessary for the purposes of the employment relationship. “However, an arrangement for use for employees cannot be based on this. The installation of the app is therefore also voluntary for employees,” said Fuhlrott. “This also applies if the employee uses a service cell phone”. Nothing else can also be regulated through a company agreement, since this is the personal life of the employee, which the works council and employer cannot regulate, Fuhlrott continued.
However, if the employee uses the app and shows an alarm, he must inform his employer about it. “This requires the employee’s duty of consideration,” explains Fuhlrott. “The employer must be informed of the suspicion of an infection so that he can then check whether he sends the employee home first or if necessary takes protective measures for other employees,” explains Fuhlrott. “The employer will also be able to ask the employee to obtain further information about the existing risk of infection so that the risk can also be assessed with the involvement of the company doctor.”
If the Corona warning app shows an alarm to the employee and if he is otherwise symptom-free and symptom-free, he is also not unable to work. The employer therefore does not have to pay sick wages. However, if the employer decides to send the employee home, the employer must of course pay for it during this time. “In such a case, labor lawyers speak of a paid leave,” says Fuhlrott.
However, the employee is not entitled to paid time off – not even in the case of a Corona app alarm. “If the employee can carry out his work in the home office, the parties can of course also agree on this,” recommends the labor lawyer. The employer is only entitled to reimbursement of the salary for paid leave if the employee is also officially quarantined. “The Infection Protection Act provides corresponding provisions in paragraph 56, paragraph 1,” says the lawyer.