Corona Termination: A New Threat to Expat Employment in Germany
As a result of the current and ongoing situation regarding the Coronavirus (COVID-19), we have received numerous inquiries as to whether a German employer can terminate an expat’s employment due to issues resulting from the Coronavirus outbreak.
As almost always the case in answering such legal questions, the correct response will depend almost exclusively on the specific circumstances surrounding the situation: As long as the expat fulfills their contractual obligations (i.e. if they continue to offer and perform their services, where appropriate from home office) they are generally entitled to retain their contractual remuneration.
Short term absence
In the event of a short-term leave of absence from the workplace of around one working week, the expat should retain his or her right to remuneration, even without offering or performing their own duties – unless § 616 BGB (an article of German law which states a person, for a short period, should not be deprived of remuneration due to circumstances beyond their control) is not contractually excluded. Additionally, the termination of an employee would have almost no chance of succeeding, should it occur due to the expat’s contracting of the Coronavirus.
On the other hand, an unexcused absence from work (either because of the fear of infection or, in certain cases, due to taking care of loved ones) can very well lead to the termination of the employment relationship. In such cases, a mutually agreed arrangement with the employer should be sought before not appearing in work.
III. Residence regulations for (employed) skilled workers from third countries
Pursuant to § 18a or § 18b(1) of the Residence Act, a residence permit may be issued to a skilled worker for the purpose of pursuing a qualified occupation for which the qualification they have acquired qualifies them. The requirements for the visa or residence permit are:
- There is a concrete job offer.
- Approval for employment has been granted by the Federal Employment Agency (Bundesagentur für Arbeit) in accordance with § 39 (2) of the Residence Act.
- In the case of an educational qualification from abroad, the equivalence of vocational training or the comparability of the foreign university qualification must have been established. As a rule, this must be proven by a certificate of recognition issued by the competent recognition authority in Germany.
- If a licence to practise a profession is required (in the case of regulated professions), it must be available or promised at the time of application.
- For persons over 45 years of age, proof must be provided of an adequate retirement pension or a gross salary of at least 55% of the annual contribution ceiling in the general pension scheme must be paid.
The residence permit for skilled workers in accordance with § 18a or 18b of the Residence Act is issued for a period of four years. If the employment relationship is limited to a shorter period, the residence permit is issued for that period. If the conditions for issuance continue to be met, the residence permit can be extended or a permanent residence permit may be issued.
The EU Blue Card pursuant to § 18b (2) of the Residence Act applies exclusively to skilled workers with a university degree recognised as equivalent or a German university degree. To obtain an EU Blue Card, the following requirements must be met:
- There is a concrete job offer for employment that is appropriate to the qualification.
- If a license to practise a profession is required (in the case of the regulated professions), this must be available or promised at the time of application.
- Annual gross salary amounting to at least two-thirds of the annual contribution ceiling in the general pension insurance scheme.
- For employment in certain occupational groups, the required salary limit is lower in the general pension scheme, at least 52% of the annual contribution ceiling. This applies, for example, to medical professionals, specialists in engineering, natural science and mathematics, and IT. In such cases, unlike in the general case, the approval of the Federal Employment Agency is required
In principle, the EU Blue Card is issued for a maximum of four years. If the conditions for issuance continue to be met, the EU Blue Card can be extended. If the duration of the employment relationship is less than four years, it shall be issued for the duration of the employment contract plus three months.
3. Special case: IT specialists with practical professional knowledge from third countries
There is a special rule for the recruitment of foreign IT specialists, according to which applicants from third countries receive the approval for employment by the Federal Employment Agency in the IT sector, without the need for formal recognition of their qualifications by a competent recognition body in Germany (§ 19 (2) in conjunction with § 6 of the Employment Regulation (BeschV)).
The following requirements must be met:
- The applicant can demonstrate at least three years of professional experience in the IT sector within the last seven years, which corresponds to the qualification level of an academic specialist.
- The applicant should demonstrate the appropriate qualification by successfully participating in theoretical training or relevant IT examinations.
- The gross annual salary must be at least 60% of the annual contribution ceiling in the general pension insurance scheme.
- The applicant has at least B1 level of German knowledge based on the CEFR (Common European Framework of Reference for Languages). In individual cases, proof of German language skills may be waived, e.g. if it is not absolutely necessary for the potential job.
4. International students and graduates of German universities as potential for skilled workers
After successfully completing a degree in Germany, university graduates from third countries are allowed to stay in Germany in order to look for qualified employment. They are granted a residence permit for up to 18 months to look for a job in Germany (§ 20 para. 3 No. 1 Residence Act).
In addition, international students from third countries may obtain a residence permit for another purpose during or even before graduation in Germany, in accordance with § 16b (4) of the Residence Act:
- Taking up employment as a skilled worker (§ 18a; 18b of the Residence Act) or on the basis distinct practical professional knowledge (§ 19c Para. 2 of the Residence Act): Students may be sufficiently qualified to take up a qualified job without completing their domestic studies on the basis of previously acquired degrees or with the knowledge and skills acquired so far. In such cases, the purpose of residence may be changed if there is a concrete job offer. Upon application, the skilled worker will be granted a residence permit to pursue qualified employment.
- Admission of qualified vocational training (§ 16a of the Residence Act): This enables foreign students to switch to dual vocational training, e.g. if there is an offer of a training place, the corresponding residence permit can be issued upon application.
If you are planning on pursuing self-employment in Germany and do not want to go through the application procedure for the residence permit on your own, or simply have any further questions in this regard, we would be happy to help you.
We also support companies in the planning of assignments of foreign skilled workers as well as the specialists themselves who need legal support.