In times of the corona crisis, volunteers are more in demand than ever. Associations, clubs and initiatives offer an opportunity for voluntary work and make a significant contribution to coping with the corona pandemic. Think of the volunteers of Technisches Hilfswerk (THW) who, together with the voluntary fire brigades, set up mobile medical test centres or supply personal protective equipment for medical staff to hospitals. In this context, many questions related to labour law arise. What must the employer take into account if employees want to volunteer? Are employees entitled to be released from work? What are the possible courses of action under labour law?
Voluntary work is usually carried out in the spare time. A little more difficult is the possibility of volunteering during the actual working hours.
As a general rule, employers must release their employees for voluntary work if this is in the public interest (e.g. voluntary work in the health sector, child and youth welfare). On the other hand, there is no entitlement for private voluntary work, such as in sports and animal protection associations.
For some voluntary work there are special legal regulations which determine the amount of time someone has to be released from work for volunteering. For example, the Hessian Fire and Disaster Protection Act (Hessisches Brand- und Katastrophenschutzgesetz, HBKG) regulates for members of the voluntary fire brigade that employees who take part in firefighting jobs during working hours must be released from work for the duration of their participation while receiving their pay. The German Act on the Technisches Hilfswerk (THW-G) provides for an almost identical regulation for volunteers of the THW. In both cases, the release from work takes place with continued payment of the remuneration. However, the employer must, in principle, be reimbursed the remuneration paid, including social security contributions, on application.
For helpers from private aid organisations (e.g. German Red Cross) there are basically no special legal regulations, but the general principles for remuneration are applied. In these cases, however, the employer's obligation to continue to pay remuneration can arise from Section 616 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), provided that the loss of working hours does not occur for a relatively long period of time. This must be decided on a case-by-case basis, taking into account the specific circumstances. As a rule, however, a continuous absence from work of more than five days should lead to a loss of entitlement to remuneration.
Voluntary work is usually a mandate within the meaning of Section 662 BGB. The activity is voluntary, independent of instructions and free of charge. The idealistic purpose of voluntary work must be the main focus. An expense allowance may be paid but may not serve to remunerate the services provided by the volunteer. In practice, therefore, caution is needed to avoid any possible risks of false self-employment of the volunteer.
The following points should therefore be given particular attention when defining the terms of the cooperation:
All circumstances of the individual case must be taken into account for the examination.
Making available temporary workers for a very limited period of time can make it possible to provide short-term and unbureaucratic assistance. According to the media, employees of system catering businesses helped out in supermarkets for a short time to cope with the rush of customers there.
As the above example shows, the instrument of temporary employment can therefore also be advantageous for all parties involved in the crisis in individual cases. Temporary staff shortages can be bridged in this way. Nevertheless, caution is called for due to the legal restrictions and the far-reaching consequences of unauthorised temporary employment.
Under certain, very limited conditions, the strict provisions of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG), e.g. with regard to the obligation to obtain permission for temporary employment, are not applicable. According to Section 1 (3) No. 2a AÜG, this is possible, among other things, if the temporary employment only takes place occasionally and the employee is not hired and employed for the purpose of temporary employment. The Federal Ministry of Labour and Social Affairs (BMAS) has provided employers with support on how to interpret the law on its website. According to this, it is possible to assign own employees to work at other companies which are suffering from an acute labour shortage without requiring a permit under the AÜG, as an exception in the current corona crisis. The following requirements must be met in this case:
According to the BMAS, in view of the particular importance of such assignments, it is appropriate and in accordance with the principle of equal treatment under EU law if the employees temporarily assigned to an organisation are given the same status as the organisation’s permanent employees, especially with regard to the equal pay principle.