This issue has now led to a rude awakening for one owner from Westphalia-Lippe: around a third of his applications for reimbursement have been rejected by the responsible authority. “We haven’t heard anything about the other applications yet.” These costs should actually have been covered, as the losses were based on a government order. The fact that he may now not be able to expect any money at all leaves him speechless.
Things had gone quiet around these quarantine regulations – since the end of the pandemic, the legal aspects “from back then” have also lost their relevance, according to the owner. The compensation payments have not been an issue for the Pharmacists’ Association (AVWL) either. “We do not have cases like the one you described,” they said when asked.
There was only one case in which the loss was reimbursed, but not to a satisfactory level. “As I said, we have no knowledge of any losses not being reimbursed at all.” The pharmacist is also the first case for his tax office. If there is an official order, a lawsuit in the administrative court could be considered, they say.
Competent authority refers to updated case law
“Anyone who, pursuant to this Act, is considered to be an excretor, suspected of being contagious, suspected of being ill or as any other carrier of pathogens […] “Anyone who is or is subjected to a ban in the exercise of his or her previous employment and suffers a loss of earnings as a result shall receive compensation in cash,” stated Section 56 Paragraph 1 of the Infection Protection Act (IfSG), which was created for compensation payments.
In this specific case, the local authority responsible is the Landschaftsverband Westfalen-Lippe (LWL). Such cases are not uncommon here: “In fact, we have to reject most applications.” This is based on a letter that NRW Health Minister Karl-Josef Laumann (CDU) sent to the employers’ associations in the social sector at the end of June, which indicates a change in the legal situation.
It states: “The consequences of the pandemic that have not yet been resolved include the possible reimbursement of continued wage payments to employees who were isolated due to an infection with the coronavirus or as contact persons and were therefore unable to perform their work, in accordance with the provisions of the Infection Protection Act,” said Laumann. The two associations responsible for this in North Rhine-Westphalia have so far received 1.15 million applications and around 950,000 of them have been processed.
Two rulings change payment regulations
Due to two rulings by the Higher Administrative Court (OVG NRW) from March 2023 and a ruling by the Federal Labor Court from March of this year, the processing of the applications has been temporarily suspended, the minister continued. The decisions have resulted in deviations from previous decision-making practice and led to many applications being rejected.
“The state’s previous decision-making practice cannot therefore be maintained. The regional associations will soon resume processing the cases. In particular, with regard to the decision of the Federal Labor Court, the regional associations will in all probability not be able to make a positive decision in most cases. This also affects the hospitals and employers of the nursing staff,” said Laumann in June.
“Understandably,” this will “cause disappointment and dissatisfaction among some of those affected,” Laumann admitted, and asked for understanding that the changed legal situation must be implemented.
There is no loss of earnings
The LWL also responds accordingly to the owner’s case: “There is no loss of earnings in particular if the employer is obliged to continue paying wages despite the lack of work.” According to the Federal Labor Court’s ruling from March of this year, “a Sars-CoV-2 infection is an illness within the meaning of Section 3 Paragraph 1 of the Continued Remuneration Act (EntgFG) even if it is asymptomatic.” Accordingly, the owner’s affected employee is to be considered as unfit for work due to the absence from work caused by the corona infection that was present at the time.
“This means that proof of an infection resulting in isolation triggers the obligation to continue paying wages in accordance with Section 3 of the EntgFG,” says the LWL’s response. Isolation is the legally mandatory consequence of infection with the coronavirus, which means that it is covered by the EntgFG. According to the case law of the Federal Labor Court, there is therefore no entitlement to compensation for loss of earnings.
In principle, however, positive decisions could still be made in “cases of isolation as a contact person and for periods of childcare, since in these cases the isolation and loss of earnings were not due to an infection,” according to the NRW Ministry of Health – provided that all regulations are observed.
