Blog Industry Explore

Legal Implications of COVID-19: "One Should Think About the Worst Case Scenario"

To conclude our impact series, we take a look at an area that is difficult to grasp and probably the most complex: the legal dangers for companies due to the COVID-19 pandemic. We asked lawyer Dr. Christian Herbert for guidance.

Blog KINEXON SafeZone Impact Series - Legal Impact
MunichJul 30, 2020

Claims for damages from employees who feel they are not sufficiently protected, legal disputes with insurance companies due to a business lockdown, conflicts due to unfulfilled contracts … the COVID-19 pandemic also presents companies with numerous legal challenges that can become painful and threaten their existence.

We wanted to know how a legal expert evaluates the developments of the last few months and spoke to Dr. Christian Herbert, lawyer for administrative law, commercial and corporate law and international business law at the Gréus law firm in Heidelberg, Germany.

200730 Blog Impact Series Legal Hightlight 01

KINEXON: Dr. Herbert, how do you assess the protection measures taken by companies to date from a legal perspective? Where do you see a need for action?

Dr. Herbert: I consult many large production companies at the industrial location of Mannheim. During the lockdown, production stood still. Employees were sent home.

At that time, problems with adequate protective measures therefore did not arise. The situation was different with contract workers that were temporarily employed. Here, some difficult legal questions arose regarding remuneration and claims, which have not been clarified to date.

Another major legal problem is that a temporary employee is not formally subject to instructions from the company where he works. He cannot be forced to comply with protective measures. At best, he may be expelled from the factory premises if he does not comply with the required protective measures.

200730 Blog Impact Series Legal Hightlight 02 EN

A business closure insurance is intended to cover the financial loss of a business closure. 


Crucial for this: 

  • Closure was initiated by an external party 
  • Insurance contract covers the event as occured 
  • Sufficient safeguards can be presented 
200730 Blog Impact Series Legal Hightlight 03 EN

KINEXON: Do the measures currently applied go far enough for you? Or are more far-reaching measures needed?

Dr. Herbert: As far as I got insight, the protective measures have been well and sufficiently communicated to the employees by the companies. 

However, the measures have been in place for some time and in the daily work many duties are quickly forgotten. This is normal, but leads to the fact that good measures are only implemented to a limited extent.

KINEXON: How should companies react?

Dr. Herbert: With regard to further measures, the worst case scenario should be considered. The question should be asked whether in a COVID-19 infection the plant has to be closed down completely or whether the existing measures can prevent a lockdown. 

KINEXON: In order to prevent this worst case scenario, companies rely on distance and hygiene rules as well as tracing infection chains. What do companies have to observe in legal terms? 

Dr. Herbert: Distance and hygiene rules are and will remain the most important regulations. Maintaining a minimum distance of 6 feet to other persons is recommended, especially if other protective measures are not available or not possible.

In addition, a hygiene concept need to be designed by companies. However, some legal pitfalls arise from this. Let’s take the tracing of infection chains, for example: 

Companies should definitely check the legal regulations before implementing their concept! Employees do not have to agree to every data acquisition!

KINEXON: Are there any new legal developments regarding the tracing of infection chains?

Dr. Herbert: With the pandemic, a lot of is currently changing in labour law. For example, employees are required to provide more information. Two examples: Because of the devastating risk of infection, it is now assumed that a COVID-19 infection must be communicated in concrete terms. It is therefore no longer sufficient to simply call in sick”.

And even if employees are on holiday in COVID-19 risk areas, the company will probably have a right to be informed without being asked. Most likely, the company can demand that the employee undergoes a test. If the employee refuses, the work can be refused — unpaid.

KINEXON: Both of these factors are probably very much to the benefit of companies. What do you see as legal dangers? For example, for companies that do not adequately protect employees?

Dr. Herbert: This question is closely linked to the question of what duties entrepreneurs have towards their employees in the specific situation. This results from the field of activity of the company, but also from the personal constitution of the worker.

200730 Blog Impact Series Legal Hightlight 04 EN

Germany: Company must prove that the infection did not take place in the company.

USA: Infected employee must prove that infection occurred during working hours.

200730 Blog Impact Series Legal Hightlight 07 EN

A lack of protection can be the cause of illness or worse. Questions of liability arise here as a consequence: Can the employer be held liable for criminal liability, for example for negligent bodily injury? Can the employee demand sufficient protective measures? Are fines threatened because of the lack of protective measures or must compensation be paid for treatment costs or damages for pain and suffering?

Quite clearly: health protection in the company is not only a topic for the company doctor. The serious liability risks are also an issue for the compliance officer.

KINEXON: How high do you estimate the risk of a wave of complaints from employees who do not feel adequately protected?

Dr. Herbert: Same here, a distinction must be made between legal protection which serves as a preventive measure to improve protective measures and that which subsequently claims damages for lack of health protection.

With regard to preventive legal protection, I consider the danger” of the number of plaintiffs to be rather low, while in individual cases the consequences for the company can be serious .

Let us take this prominent case in the German meat industry, where employees went public instead of seeking legal protection. This may also have to do with the financial inhibition threshold to go to court.

Nevertheless, I think that such blatant violations will in future motivate sensitized employees to seek legal protection in advance.

Current legal situation (state: july 2020)

200730 Blog Impact Series Legal Hightlight 08 EN
200730 Blog Impact Series Legal Hightlight 09 EN
200730 Blog Impact Series Legal Hightlight 10 EN

KINEXON: How do you estimate the chances of success for such lawsuits?

Dr. Herbert: The extent to which protective measures were actually deficient and the legal objective pursued are important.

With regard to future protective measures which must be implemented to protect employees, a court is likely to order a measure more quickly. Ultimately, the interest of the employer in continuing the business is weighed against the question of the employee’s health protection.

If the intended measure is appropriate and not entirely disproportionate, health protection will probably be given priority as a rule. For subsequent financial compensation, the question of quantifiable damage is also relevant. But no statement can be made here without looking at the individual case.

Infographic STOP principle EN KINEXON

KINEXON: Speaking about hygiene and safety protocols, the question of proportionality is central and important. In other words, what can and cannot be expected of employees? How should companies ideally proceed in order to clarify this question to the best possible satisfaction of all? Is there a proven process?


Dr. Herbert: It is still too early to speak of a proven process when the situation is still constantly changing. Also the operational requirements are so different that there is no one clear answer to this.

At the peak of the pandemic, German politicians repeatedly swore that Germany would have to move together” during the lockdown. I think it should be the same with coordinating hygiene and safety protocols within the company: Really all departments must work together on this!

The issue of health and safety is far too important to be made the subject of common frictions, for example between the works council and management.

200730 Blog Impact Series Legal Hightlight 11

Especially because of the fact that numerous legal questions concerning employee protection cannot be answered clearly at this point, all possibilities for risk minimization and documentation should be exhausted. 

No matter what the legal situation is, as soon as a case of infection becomes known among the staff, companies must provide evidence of concrete, effective protective measures and immediately stop possible chains of infection. 

Organizational, behavioral and personal protective measures such as those listed in the so-called Stop Model” (see graphic above) do reduce the risk of infection, but it is questionable whether they also provide the necessary clarity in legal disputes. Technical measures such as KINEXON SafeZone also have their advantages here.

Read the other articles of our​“Impact Series” here: 

More stories

KINEXON SafeZone Data Protection Blog
Data Privacy: 3 Examples Why Contact Tracing Is More Secure Than Its Reputation

When it comes to strategic contact tracing, there is no way around a discussion on data protection. Three prejudices are particularly common. We clarify.

Blog Article Contact Tracing Question and Answers Q&As
Quick Answers: Frequently Asked Questions About Contact Tracing

In the fight against COVID-19, digital solutions for contact tracing are becoming increasingly important. We have collected and answered the most frequently asked questions.

Zweite welle 2
"Cluster" Strategy Against a Second Wave? Companies Could Easily Follow Expert Advice

From an economic point of view, a second wave of COVID-19 infections could be even worse than the first. Circumstances have changed as well. In a guest article in Die Zeit,” German top virologist Christian Drosten advises a new cluster strategy.” Complex for private individuals, but actually kind of easy for companies.

Blog Safe Zone Impact Series Emotional Impact
Coronavirus Anxiety: 5 Tips How Employees Feel Safer with KINEXON SafeZone

There is no health without mental health,” wrote UN Secretary General Antonio Guterres in a guest article in TIME Magazine. His message is that the coronavirus crisis is not only a threat to our physical health; it is also an immense danger to our psyche. How can KINEXON SafeZone help? 

200606 Blog Safe Zone Impact Series 03 Blog DE
Those Who Do Not Prioritize Employee Protection Put Their Competitiveness at Risk

During the COVID-19 pandemic, it’s a natural reflex for companies to focus on cost savings. However, not providing proper protective measures for employees could create an even more significant financial burden on businesses.

200606 Blog Safe Zone Impact Series 02 Blog DE
Second Wave? Why Companies Now Have a Particularly High Social Responsibility

Oxford University sees Germany and Switzerland heading for a second wave. Latest cases show how companies protect their employees could be decisive. Their social responsibility is larger than ever.

Financial Impact header
How KINEXON SafeZone Saves Money by Protecting Employees

An employee infected with COVID-19 can lead to a complete stop of the entire operation. The financial damage can run into the millions after 10 working days. This calculation example shows the importance of efficient protective measures — for the health of the employees and the company at the same time.

Thumbnail Getty Images 1218001407 edited website
How SafeZone Can Help Sports in North America Adapt to the ‘New Normal’

As leagues in North America begin to formalize and execute return-to-play procedures, the health & safety of players and team personnel remains top priority. One way leagues and teams in Europe are staying protected is through the adoption of innovative digital technology.

200609 KNX Blog Back in Sports Business
How KINEXON Technology Contributes to the Restart in German Professional Sports

The German Football Bundesliga resumed its operations on May 16th, 2020 as the world’s first top league during the COVID-19 crisis. After that, the top German Basketball League followed suit. KINEXON technology is used by both leagues and gives a glimpse into what is possible.

200602 Blog Safe Zone UW Bvs App
UWB instead of Mobile Apps

Martin Lawitzky is the Head of Product Management at KINEXON. With his team, he was deeply involved in the development of KINEXON SafeZone. His comparison of different technologies shows that when it comes to tech-based protection against infections, companies have an option that the public sector does not.

KINEXON Sports Webinare EU iBall in front of stadium
3 Things Coaches Need to Know About Ball Tracking in Professional Football

Bayer 04 Leverkusen is the first Bundesliga club to use KINEXON ball tracking in training. Read here the three most important learnings from our webinar series on player and ball tracking — how tactical analysis will change football coaching.

Blake Griffin
Readiness, In-Season Assessment & Recovery: Three Takeaways

Our educational sports webinar sessions on Readiness, In-Season Assessment & Recovery have concluded. We have summarized the most important takeaways for you below. 

Colts Training 4
In-Season Conditioning: Three Takeaways

Our educational sports webinar sessions on In-Season Conditioning have concluded. We have summarized the most important takeaways for you before entering the next stage of the series. 

What to do with the Data8
What to do with the Data: Three Takeaways

Our educational sports webinar sessions on What to do with the Data have concluded. We have summarized the most important takeaways for you before entering the next stage of the series. 

Thumbnail 200414 US Sports Webinar Load Management Joel Embiid Blog
Load Management: Three Takeaways

Our educational sports webinar sessions on Load Management have concluded. We have summarized the most important takeaways for you before entering the next stage of the series.