Changes in the German Infection Protection Act
Overview of the significant changes in the German Infection Protection Act, including the right to compensation, suitable and appropriate measures to combat the COVID-19 pandemic, and clarification of the judicial process
By means of the amendments to the German Infection Protection Act, accepted by the German Bundestag and Bundesrat on November 18, 2020, the German legislator created a new legal basis for the measures taken to contain the COVID-19 pandemic, for regulations on the employer's obligation to continue to pay remuneration and corresponding reimbursement options, as well as more clearly defined criteria for the applicability of the rules.
Following the experience with the first wave of the pandemic and in response to the public discussion about (the need for) greater involvement of the German parliament (Bundestag), at the beginning of the so-called “wave-breaker lockdown”, the demand for an amendment to the German Infection Protection Act (Infektionsschutzgesetz / IfSG) became louder and louder. The legislator responded –by creating a new legal basis for measures to combat the COVID-19 pandemic and by adjusting the right to compensation for loss of earnings.
Regulation of special protective measures to contain the spread of COVID-19
The newly introduced § 28a of the German IfSG provides for a detailed catalog of measures that can be taken to contain the spread of COVID-19, if and for as long as an epidemic situation of national importance (§ 5 para. 1 IfSG) is declared by the Bundestag. When such protective measures are ordered, the current rate of new infections must always be taken into consideration; they can be ordered individually or cumulatively. In particular, however, they must be proportionate at all times.
The protective measures listed in § 28a IfSG are not exhaustive, yet some examples are given, such as: curfews or restrictions/limitations on contacts in private and public areas, the compulsory wearing of facemasks, bans on operations or trade or the closure of retail or wholesale trade, or restrictions and requirements for operations, trade, retail and wholesale.
General extension of the right to compensation for loss of earnings due to ordered quarantine
The applicability of the compensation regulation of § 56 para. 1a IfSG is extended until March 31, 2021. The employer must first make an advance payment and subsequently and only upon a respective application receives a refund from the competent authority. A corresponding compensation shall be made available for persons who have to take care of a quarantined person. In case a child is put into quarantine, compensation for parents is also available.
Exclusion of the claim for compensation for travel to high-risk areas
In addition to the previous exclusion of compensation under § 56 para. 1, sentence 3 IfSG, compensation for loss of earnings is not also excluded for persons who could have avoided a ban on activity or quarantine by not departing on an avoidable trip to an area, which was classified as a high-risk area at the time of departure. The term "trip" covers both short-term and long-term stays.
A trip is considered to be avoidable if, from the point of view of a reasonable third party, there were no compelling and non-postponable reasons for a corresponding trip at the time of departure. Accordingly, a trip may, for example, be considered unavoidable if special and unusual circumstances are given, such as the birth of an own child or the death of a close relative like a parent or grandparent or an own child. Other private or business celebrations, vacation trips or postponable business trips would generally qualify as avoidable trips.
Since the employer must classify a trip as either avoidable or unavoidable on the basis of criteria which are not clearly and compressively defined, a certain degree of legal uncertainty remains with every trip. Taking into account the data protection regulations, it might therefore be advisable for the employer to document the recitals used to classify a trip as "unavoidable". In the case of a misjudgment, such a documentation can play a key role in the calculation of the penalty, as it indicates that the regulations were not intentionally disregarded.
Furthermore, the term "high-risk area" is now legally defined in the newly inserted § 2 No. 17 IfSG. According to the definition, a high-risk area means an area outside of the Federal Republic of Germany that has been identified by the Federal Ministry of Health (Bundesministerium für Gesundheit), in agreement with the Federal Foreign Office (Auswärtiges Amt) and the Federal Ministry of the Interior, for Construction and Homeland (Bundesministerium des Innern, für Bau und Heimat), in which there is an increased risk of infection with a specific threatening infectious disease. The classification as a high-risk area is only applicable as of the end of the first day following the publication of the determination as high-risk area by the RKI on the Internet at https://www.rki.de/risikogebiete.
Clarification of jurisdiction (civil vs public courts)
The newly introduced § 68 para. 1 IfSG now clarifies that disputes related to (alleged) claims for compensation according to § 56 IfSG directed against a German state (Bundesland) (supposedly obliged to pay compensation) are to be handled by administrative courts. This has the particular consequence that the parties involved in the legal dispute can conduct the legal dispute before the administrative court themselves in accordance with § 67 VwGO (i.e. no need to be represented by someone qualified to practice law). In addition, the principle of official investigation applies, meaning that it is up to the administrative courts to ex officio make every reasonable attempt of clarifying the facts relevant for the decision, if this is necessary for the decision of the legal dispute.
Not all legal questions have been clarified by the adopted amendments to the German Infection Protection Act. In connection with the measures not exhaustively listed in § 28a IfSG, weighing up the severity of the respective encroachment on fundamental rights and the purpose of containing the pandemic remains the most important aspect, which will continue to be the gateway for legal disputes in the future. With regard to the requirement of certainty of the IfSG, precise definitions of the possible measures under § 28a IfSG are necessary. The lack of such definitions continues to give the state governments (Regierungen der Bundesländer) a great deal of leeway when issuing COVID-19 protection ordinances. Whether the doubts with respect to the constitutionality of the act that have been ousted prior to the acceptance of the act will lead to the constitutionality becoming the subject matter of proceedings at the German Federal Constitutional Court remains to be seen.