Labor law issues in the flood disaster

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The terrible flooding in Rhineland-Palatinate and North Rhine-Westphalia has affected an estimated 40,000 people. For those affected, a number of questions arise, not only with regard to insurance law but also labor law. The following article is intended to provide answers to the most important labor law questions.

I. The affected person's right to be released from work

Many of those affected are wondering whether they are entitled to take time off work due to the flooding. There are different scenarios here.

Those who have been personally affected by the flooding (e.g. their own house has flooded, so that cleanup work is pending), may be absent from work in accordance with § 616 BGB for a relatively insignificant period of time without losing their entitlement to remuneration. Opinions differ as to what period of time is to be regarded as "relatively insignificant". However, a period of up to five days will certainly be regarded as relatively insignificant if this period is necessary to eliminate the consequences of the flood. However, the affected parties should check beforehand whether the regulation of § 616 BGB, from which the right to exemption in this constellation follows, is not excluded. The regulation can be excluded by an employment contract or collective agreement or by a works agreement.

Employees who are not personally affected by the flooding but who cannot reach work because of the flooding do not have a right to stay away from work while continuing to receive their pay. Section 616 of the German Civil Code (BGB) is not relevant in such cases, since the so-called "risk of travel" is realized here, which is borne by the employee.

II. The company is affected

If, on the other hand, the business is affected (e.g. because the flood has damaged or destroyed the business facilities) and the employer is therefore unable to employ the employee, the so-called business risk materializes, which the employer has to bear. If the employee offers their services properly but the employer cannot accept them due to flood damage, the employer must continue to pay the employee in accordance with § 615 BGB.

In such cases, employers are advised to apply for short-time working. If the company is directly affected by the flooding, this is likely to constitute an unavoidable loss of working hours due to an unavoidable event within the meaning of § 96 of the German Social Security Code (SGB III). It is recognized in case law that accidents and natural disasters also count as unavoidable events in this sense.

III. Right of exemption for helpers

Employees who are called upon to work as volunteers for the Federal Agency for Technical Relief (THW) in disaster areas are entitled to time off from work in accordance with § 3 (1) sentence 3 THWG. The THWG does not provide for this right to be weighed against operational interests, so that the employer may not refuse the exemption on the grounds of operational reasons. The employer must continue to pay the salary for the duration of the leave. If more than two hours per day or more than seven hours within a two-week period are lost, private employers must reimburse the continued salary payments, including their contributions to social security and to the Federal Employment Agency, as well as to the company pension scheme for the entire period of absence, if the private employer requests this (§ 3 para. 2 THWG).

Similar rules on exemption can be found for employees who work for the voluntary fire brigade. The fire protection laws of the individual federal states each provide for exemption regulations that are very similar in content. For example, § 13, Subsection 2, Sentence 2 of the Fire and Disaster Protection Act of Rhineland-Palatinate regulates an entitlement to exemption for volunteer fire brigade members for the duration of their participation in operations, exercises, training courses or other fire brigade events at the request of the municipality. Here too, the employer must continue to pay the remuneration, whereby private employers will have the continued remuneration reimbursed upon application by the municipality (§ 13 (2) Rhineland-Palatinate Fire and Civil Protection Act).

Pursuant to Section 18 of the Rhineland-Palatinate Fire and Disaster Protection Act, these provisions also apply to the helpers of other aid organizations (e.g. Arbeiter-Samariter-Bund e. V., the Deutsche Lebens-Rettungs-Gesellschaft e. V., the German Red Cross e. V., the Johanniter-Unfall-Hilfe e. V., the Malteser-Hilfsdienst e. V.).

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.