Germany Update Labour Law – Amendment of the Infection Protection Act

With the Act amending the Infection Protection Act and other laws on the occasion of the repeal of the determination of the epidemic situation of national significance, new labour law regulations have been introduced, which have been in force since 24 November 2021. What needs to be taken into account from an employer’s point of view can be found in our FAQ. We are happy to assist you with any questions you may have about dealing with the current situation.

Importance of the 3-G regulation in the workplace?

According to the amendment of the Infection Protection Act, according to § 28b Abs. 1 IfSG, employers and employees may only enter workplaces in which physical contacts cannot be excluded if they have been vaccinated, recovered, or tested. The same applies to the transport of several employees to or from the workplace.
Physical contact is given if a meeting with several people cannot be ruled out in the workplace, even if there is no direct physical contact. It is therefore not relevant whether employees actually meet other people.
According to § 2 Abs. 1 ArbStättV Workplaces are workspaces or other places in buildings on the premises of a company, outdoor places on the premises of a company as well as places on construction sites, provided that they are intended for use for workplaces.
The scope is therefore narrow. For example, it does not apply when working from home. The private way to work is also exempt from the regulation.
The 3-G obligation applies to all employees and thus also to those who cannot be vaccinated for medical reasons. They must provide appropriate test evidence.

What is the employer’s duty?

The employer is responsible for checking and documenting the 3-G evidence before entering the workplace. He has to check and document the evidence on a daily basis. Prior entry into the workplace is only permitted if this is done immediately before starting work for the purpose of using a test offer.
The obligation to provide evidence and control may also be delegated to third parties. Employee data protection must be observed. It must be ensured by technical and organizational measures for data security that unauthorized persons do not receive any knowledge of the data.

Which test certificates are valid?

The following test certificates are valid:

• A PCR test that was not more than 48 hours ago;
• A Covid-19 antigen rapid test that has been carried out no more than 24 hours ago and has been carried out in accordance with the following conditions:

– From an official testing centre, pharmacy, or through a doctor;
– by the employer himself or by a person appointed by him who has the necessary training, knowledge, and experience;
– by the employee himself under the supervision of the employer or a trained person.

The validity of the test certificate must be given at the time of the operational access control.

What should be considered for tests under the supervision of a trained person?

The supervisor must be trained, in particular, he or she must be able to properly supervise the testing in compliance with the distance and hygiene measures. The test result must be properly read and correctly documented with the name of the employee and the time of the test.
The instruction of the supervisor should be documented in writing and confirmed by signature.
In addition, suitable premises must be made available for the tests in operation. It must be ensured that the distance and hygiene regulations can be complied with. In addition, for data protection reasons, care should be taken to ensure that the tests are carried out shielded, for example by setting up partitions.
In addition, it must be ensured that the employee does not start work until the negative test result is available.

Is the employer obliged to issue a certificate for the test carried out?

A test carried out on-site under supervision can be a test proof according to § 2 No. 7 SchAusnahmV, i.e. the employer can issue a certificate. An obligation does not result from this, if necessary, other regulations may result from the relevant regulations of the federal states.

Is the employer obliged to carry out tests under the supervision of a person in the company?

No. The employer is still obliged to offer his employees two tests a week (§ 4 para. 1 Corona-ArbSchV). However, there is no obligation to design the test in such a way that the employees obtain a valid test certificate within the meaning of § 28b IfSG. The employer is not affected by any obligation to bear the costs in order to obtain a valid 3-G proof that entitles the employer to join the workplace.

What are the special features for vaccinated and convalescents?

Vaccinated and recovered employees can be exempted from the daily check-up obligation once they have been registered.
However, employees are still obliged to keep their evidence with them in order to be able to present the proof in the event of an official inspection. However, the proof can also be deposited with the employer. The deposit is voluntary.

Can the employer request a copy of the proof of vaccination or recovery?

The deposit by means of a copy of the proof can only be made voluntarily. The employee must therefore also be given the opportunity to present the proof on-site for registration. When sending copies of evidence by e-mail, care must be taken for data protection reasons that the recipient group is kept limited. This can be done, for example, by setting up a function e-mail address.

What happens if the requirements are not met?

The IfSG provides for a fine of up to EUR 25,000.00 in the event of violations (§ 73 para. 1a no. 11b and d IfSG). The fines apply both to the employer in the event of a breach of the monitoring and documentation obligation and to employees entering the workplace without appropriate proof.
Anyone who is not willing to present a 3-G proof must be denied access to the company. If the work performance cannot be provided elsewhere (e.B. in the home office), labour law sanctions are also considered, such as the loss of the wage payment, a warning, or after a warning (possibly several) the termination of the employment relationship.

Does the works council have a right of co-determination?

The introduction of the 3-G rule in the company is a state requirement and therefore not subject to co-determination.
However, the design of the 3G regulation, for example with regard to the design of the operational access controls, may, if and to the extent that the employer has room for manoeuvre in the implementation, be subject to co-determination. In this respect, co-determination rights under § 87 sec. 1 no. 1, 6, and 7 BetrVG come into consideration.

Does the works council have rights to the information?

In accordance with § 80 (2) BetrVG, the works council must be informed by the employer in good time and comprehensively in order to carry out its tasks. The prerequisite for entitlement to the obligation to provide information or.dem corresponding right to information of the works council, which is standardized in this respect, is, therefore, the reference to the task. The tasks include all co-determination rights as well as the general tasks mentioned in § 80 (1) BetrVG. Rights of access may therefore arise if and to the extent that the information is necessary for the performance of the task.

Does the employer have to offer work from home?

The home office regulation introduced in § 28b Abs. 4 IfSG corresponds to the home office regulation, which already applied in the spring. The employer must then offer employees in the case of office work or comparable activities to carry out these activities in their home if there are no compelling operational reasons to the contrary. In this respect, conflicting reasons must necessarily be operational, for example, because the operating procedures would be significantly restricted. The employees must accept this offer, provided that there are no reasons to the contrary. With regard to the conflicting reasons of the employees, no high requirements are to be made, it is sufficient, for example, if it is not possible to work from home due to spatial confinement, disturbance by third parties, or inadequate equipment.

Can the lack of digitization of work processes be a compelling operational reason?

In the opinion of the legislator, technical reasons, such as the unavailability of the required IT equipment or necessary changes to the work organization, should only be temporarily cited as a compelling operational reason until the end of the reason for prevention.

What is the difference between telecommuting and working from home?

Teleworking within the meaning of § 2 Abs. 7 ArbStättV is a permanently established workplace in the private sector of the employee. The conditions of the teleworking workplace must be laid down in an employment contract or within the framework of an agreement and the necessary equipment of the teleworking station (furniture and the necessary work equipment) must be provided and installed.
The IfSG, on the other hand, speaks of a home office. This refers to the “mobile work” in which the employee performs his work by means of a mobile device (e.B. laptop) from any place (e.B. the apartment). According to the IfSG, there is only the obligation to offer home office, i.e. a temporary work opportunity from home, under the aforementioned conditions. Therefore, not all requirements that are placed on a telecommuting workplace have to be met for the offer.

By Kim Weidler, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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