Labour law - guide for filmmakers

General information

What preventive measures does the Executive Producer have to take to protect the filmmakers?

Every employer has a duty to take the necessary measures to prevent work-related health hazards. This obligation is to be understood as dynamic, i.e. the measures taken must be continuously reviewed for their effectiveness and adapted if necessary (Section 3 (1) ArbSchG). Which measures are required depends on the individual case. However, it is conceivable that certain hygiene measures will be ordered and implemented or that employees will be informed about health hazards. At present, it may also be necessary to ask employees whether they have been in risk areas in the past two weeks.

What should be done if it turns out that one of the film-makers involved in the production is ill?

If an official order has not already been issued, it must be ensured that the person concerned no longer has any contact with other team members during production. He or she must therefore be released with immediate effect. In addition, the employer's duty of care requires that at least those employees who were in direct contact with the sick person are informed about the illness.

What measures can or must be taken if there is only a suspicion that a film-maker has been infected?

A distinction must be made here as to what the suspicion is based on. If, for example, the person concerned does not show any of the typical symptoms of Covid-19 (in particular dry cough, fever), although they have recently been in a risk area or have had contact with a person who has been confirmed as infected, there is at least no obligation to take time off work. Nevertheless, it may be necessary to monitor developments more closely in order to be able to react immediately if symptoms occur. If, on the other hand, symptoms are already observed, the person concerned must be released from work immediately, even if no test result is yet available.

From the employer's perspective, however, it should be noted: If the employer releases an employee without objective evidence of infection, the employee may be entitled to compensation for default of acceptance in accordance with Section 615 BGB, i.e. continued payment of the agreed remuneration.

Can film-makers stay at home for fear of infection?

As long as the employee is fit for work, he is obliged to perform his contractual work. Concern about infection alone is not reason enough to refuse to work. Therefore, an employee who fails to turn up for work without authorisation may be dismissed after a warning.

What can filmmakers do if they have to look after their children who have to stay at home due to daycare and school closures?

In this case, Section 616 BGB can temporarily secure the employee's entitlement to remuneration. Accordingly, an employee does not lose their entitlement to remuneration if they are prevented from performing their work for a relatively insignificant period of time through no fault of their own for personal reasons. This also includes childcare if this is not otherwise possible. However, it should be noted that not both parents can claim this at the same time. It must also be checked on a case-by-case basis whether childcare is actually necessary. This may no longer be the case for adolescents, and a limit of 12 years (based on the regulation for illness of a child in accordance with § 45 SGB V) is also conceivable. Furthermore, the entitlement to continued payment is limited to a "relatively insignificant period". The law does not expressly specify a time limit. An absence of up to five days is predominantly regarded as an insignificant period of time.

However, it is important to note that the provisions of Section 616 BGB may also be excluded by the employment contract. It is therefore important to check what has been agreed in the individual contract.

Does this also apply if the child is ill?

It is not only in the case of coronavirus that parents are entitled to sickness benefit in accordance with Section 45 (1) SGB V if a doctor's certificate states that they need to be absent from work to supervise, look after or care for their sick and insured child, another person living in their household cannot supervise, look after or care for the child and the child has not yet reached the age of twelve. Each parent can claim child sickness benefit for up to ten working days per child and year, single parents for up to 20 working days per child and year. The total entitlement is limited to 25 working days or 50 working days for single parents.

Are film-makers entitled to continued payment of wages in the event of illness?

According to Section 3 of the Continued Remuneration Act (EFZG), every employee has a statutory entitlement to continued remuneration in the event of illness for up to six weeks. If, as a result of the illness, official measures are also ordered in accordance with the Infection Protection Act (see below), the employee's claims arising as a result may compete with the claim under Section 3 EFZG. It is predominantly argued that the claims under the Infection Protection Act then take precedence.

What options are available to the Executive Producer who is threatened with financial disadvantages due to forced interruptions to filming or other restrictions?

In many cases, it will not be possible to avoid temporarily suspending or postponing filming at the moment. This is tantamount to a temporary closure of operations. However, the employer should be aware that, with regard to existing employment relationships, it is generally responsible for the so-called operational risk in accordance with Section 615 sentence 3 BGB. This means that the employer remains obliged to pay the agreed remuneration to the employees without initially being entitled to compensation claims. This applies in any case if the Executive Producer decides in favour of the postponement on his own initiative. Passing on the operational risk under an employment contract is only permitted by case law in very narrowly defined exceptional cases. Therefore, very few employment contracts are likely to contain a clause to this effect. A subsequent agreement would have to formulate the risks to be transferred to the employee very precisely and narrowly in order not to turn the legal assessment of labour law into its opposite. Whether labour courts would uphold such an agreement in the event of a dispute can therefore hardly be predicted even in individual cases.

For the Executive Producer, it may also seem obvious to order leave for individual or all employed filmmakers. However, it should be noted that although a holiday order ("compulsory holiday") is possible in principle, the interests of the employees must be taken into account. If annual leave has already been planned, a deviating order is likely to fail as a rule. The ordering of company holidays also requires the co-determination of the works council in accordance with § 87 Para. 1 No. 5 BetrVG.

Finally, under certain circumstances, short-time work may also be ordered in order to save costs. See the separate section below.

Short-time work

When can the company order short-time working?

However, short-time working cannot be ordered without a legal basis. This can result from a collective labour agreement, a works agreement or an individual agreement (e.g. the employment contract). If there is a works council in the company, Section 87 (1) No. 3 BetrVG stipulates that it has a right of co-determination in the case of a works agreement. Furthermore, the collective agreement for film and television professionals employed on a permanent basis (TV FFS) does not contain any provisions on short-time work.

It may therefore be advisable to include a clause on short-time working in employment contracts still to be concluded with filmmakers.

Under what conditions can short-time working allowance be granted?

Even if there is a legal basis for ordering short-time working, the entitlement to short-time working allowance from the employment agency is subject to further conditions, which have now been relaxed by the legislator:

In particular, there must be a significant loss of work with loss of earnings (§ 95 No. 1 SGB III). According to § 96 Para. 1 SGB III, a loss of work is significant if it is due to economic reasons or an unavoidable event, it is temporary, it is unavoidable and at least one third of the employees in the company are affected by a loss of pay of more than 10% of their gross salary in the respective calendar month.

The threshold for affected employees has now been reduced from one third to 10% with retroactive effect from 1 March 2020.

Whether the loss of working hours is due to an unavoidable event is usually questionable in the case of illness within the workforce. However, the Federal Employment Agency confirmed at the end of February that short-time working allowance can be applied for if short-time working is ordered due to the coronavirus pandemic. This could be the case, for example, if deliveries were cancelled and working hours had to be reduced as a result or if government protective measures ensured that the business was temporarily closed.

It should be noted that although the legislator and the Federal Employment Agency are aware of the situation and are signalling concessions, each application for short-time working allowance must still be examined on a case-by-case basis to ensure that all requirements are met. In particular, it will be necessary to check whether the loss of working hours was avoidable. The employer must prioritise all other measures available to them. § Section 96 para. 4 SGB III provides for the granting of leave and the cancellation of working time credits, among other things. This may also include a working time account in accordance with the TV FFS. As announced by the Federal Ministry of Labour and Social Affairs on 16 March 2020, the creation of negative working time accounts will be waived with retroactive effect from 1 March 2020 in companies in which agreements on working time fluctuations are used.

The short-time working allowance is paid by the employment agency for a maximum of twelve months. However, according to § 105 SGB III, the amount of the short-time allowance is only 60% or, in the case of an increased benefit rate for unemployment benefit, 67% of the net pay difference, i.e. the difference between the gross pay that the employee would have earned in the entitlement period and the gross pay that the employee actually earned. In addition, the employer normally has to pay social security contributions on the entire remuneration even if short-time working allowance is granted. However, the Federal Ministry of Labour and Social Affairs has announced that social security contributions for short-time work will be reimbursed in full with retroactive effect from 1 March 2020.

How can I apply for short-time working allowance?

Short-time working allowance is only granted upon application. In accordance with § 99 Para. 1 SGB III, the employer must notify the loss of working hours in writing or electronically to the employment agency in whose district the company is based. The notification must also substantiate the facts that justify the loss of working hours and the conditions for payment of the short-time working allowance. The notification must be accompanied by a statement from the works council. The Employment Agency will then immediately issue a decision as to whether there has been a significant loss of working hours and whether the operational requirements have been met.

Pursuant to § 99 Para. 2 SGB III, the short-time working allowance is paid at the earliest from the calendar month in which the notification is received by the Employment Agency. § Section 99 para. 2 sentence 2 SGB III also provides that in the event that the loss of work is due to an unavoidable event, the notification for the corresponding month is deemed to have been made if it was made immediately. Affected companies are therefore advised to make the notification immediately, particularly at the beginning of a calendar month.

The Federal Employment Agency provides further information on short-time work and the application procedure under this link.

Compensation claims due to official measures

In the event of operational restrictions due to official orders, the question arises as to whether employees and/or employers are entitled to compensation from the state.

What measures can the authorities take to combat the coronavirus?

Section 28 of the Infection Protection Act (IfSG) grants the competent authority the general authorisation to take all necessary protective measures. In particular, people can be placed under observation or even quarantined, and a ban on work is also possible (Sections 29 to 31 IfSG). However, it is also possible to order the closure of a business. In addition, Section 32 IfSG also authorises the issuing of generally applicable ordinances. The ordinances issued by the federal states since the beginning of March, which prohibit certain events or restrict shop opening hours, for example, are based on this authorisation to issue ordinances.

The authority responsible for the measures in accordance with Sections 28 to 31 IfSG is the authority specified by state law. In Berlin, this is the State Office for Health and Social Affairs in connection with tasks of city-wide importance. In Hamburg, the district authorities are generally responsible for implementing the IfSG.

What claims do employees and/or employers have against the state if authorities issue orders to combat the coronavirus?

A distinction must first be made here as to whether it is an individual measure against an excreter, suspected infectious agent, suspected carrier or other carrier of pathogens in accordance with Sections 29 to 31 IfSG or the issue of a statutory order on the basis of Section 32 IfSG. This is because Section 56 IfSG only provides for claims in the event of a ban on activities or quarantine. Furthermore, only the addressee of the order, i.e. not the company or employer, is entitled to make a claim.

However, the case of official closure of a business is not explicitly regulated. This is in any case possible as a measure in accordance with Section 28 IfSG, for example if a large number of cases of infection are detected within a business. However, the law does not expressly regulate which claims arise from measures in accordance with Section 28 IfSG. It is therefore still unclear whether employees can claim compensation in this case as well.

The employee is then entitled to compensation in the amount of their loss of earnings. Pursuant to Section 56 para. 3 sentence 1 IfSG, the loss of earnings is the net remuneration (see below on the relationship between compensation claims and short-time working allowance). However, this only applies for a period of up to six weeks in accordance with Section 56 (2) IfSG. From the seventh week onwards, the amount of the compensation claim is equal to the sickness benefit pursuant to Section 47 (1) SGB V, provided that the loss of earnings does not exceed the annual salary limit under health insurance law.

How do those affected receive compensation?

The following applies to employees: The amounts are paid by the employer for up to six weeks (Section 56 (5) sentence 1 IfSG), but not beyond the duration of the employment relationship. The employer then has a claim for reimbursement against the competent authority (Section 56 para. 5 sentence 2 IfSG). However, reimbursement is only made upon application, which must be submitted within three months of the cessation of work or the end of quarantine (Section 56 (11) IfSG). The authority must also grant the employer an advance on the reimbursement amount in accordance with Section 56 (12) IfSG. This will be particularly relevant for small businesses. From the seventh week onwards, the application for payment of compensation must be submitted to the competent authority by the person concerned (Section 56 (5) sentence 3 IfSG).

Are self-employed people also entitled to compensation under the IfSG?

The provisions of Section 56 IfSG are not limited to employees. Anyone who suffers a "loss of earnings" due to one of the aforementioned measures is entitled to compensation. Pursuant to Section 56 (3) sentence 4 IfSG, the loss of earnings for self-employed persons is one twelfth of the income from employment (Section 15 SGB IV) from the activity for which compensation is payable.

For self-employed persons, the person concerned must submit an application for compensation to the competent authority (Section 56 (5) sentence 3 IfSG). Self-employed persons are also entitled to an advance payment (Section 56 (12) IfSG).

Is there also a hardship provision?

If the official measures jeopardise the livelihood of the addressee of the order, those entitled to compensation may be reimbursed to an appropriate extent by the competent authority for the additional expenses incurred during the periods of loss of earnings upon application. Self-employed persons whose business or practice is suspended for the duration of an officially ordered ban on activity or quarantine will also receive, upon application, reasonable compensation from the competent authority for any uncovered operating expenses that continue during this period.

What is the relationship between compensation claims under the IfSG and short-time working compensation?

Claims for compensation due to official measures under the IfSG and short-time working compensation are not fundamentally mutually exclusive. After all, it is conceivable that an employee is fit for work but is nevertheless placed in quarantine as a suspected case of infection. It therefore follows from Section 56 (3) sentence 2 IfSG that the compensation amount is increased by the short-time working allowance to which the employee would be entitled if they were not prevented from working due to the official measure. At the same time, pursuant to Section 56 (9) IfSG, the claim to compensation, which corresponds to the short-time working allowance, is transferred to the Federal Employment Agency.

And here you can download the text again