Given the current corona situation, the decision of the German Federal Parliament to let the declaration that Germany is in a state of epidemic emergency with a national dimension expire on 25 November 2021 was treated quite controversially in the media. This decision has wide-reaching legal consequences. L legislators met these consequences with another amendment to the Infection Protection Act (Infektionsschutzgesetz, IfSG). This creates a new legal basis for most corona measures. In addition, it introduces a very broad 3G obligation (the requirement to show proof of vaccination, recovery from infection or a negative test) for workplaces. The new rules enter into force on 24 November and replace any previous regional 3G requirements. They are temporary and expire on 19 March 2022. The rules are binding for all workplaces and require a short-term adjustment to working procedures. This article provides guidance on the implementation of these new rules.
The 3G requirement within the workplace
Section 28b of the Infection Protection Act imposes the 3G obligation (requirement to be fully vaccinated, recovered from infection or show a negative test) in the workplace. It applies to all workplaces, in which it is not possible to exclude physical contact between employees or between employees and third parties. The 3G requirement applies regardless of the size of the workplace – in contrast to the current rules in Bavaria, for example.
Only employees who are vaccinated against the coronavirus, have recovered from a corona infection, or can show a negative test may access the workplace. The burden of proof also applies to the employer. The term “workers” covers all persons who are defined as such in § 2 (2) of the Occupational Health and Safety Act (Arbeitsschutzgesetz). Conversely, the provision does not apply to third parties, such as clients or customers who enter the workplace. Parties concerned must present proof of their 3G status. They therefore must carry it with them or place it on file with their employee. The proof can be in paper or electronic form and must be in German, English, French, Italian or Spanish. The proof of vaccination must show that the person is fully vaccinated with an approved vaccine (BioNTech, Moderna, AstraZeneca, Johnson & Johnson/Janssen) and that at least 14 days have elapsed since the last vaccination. The proof of recovery must show that the person was infected with the coronavirus, that this infection was confirmed by a positive PCR test and at least 28 days but not more than six months have elapsed since the positive test. A tested person is someone who can show that they have had a negative rapid test within the last 24 hours before entering the workplace – 48 hours in the case of a PCR test – performed at an official test station, within the workplace by trained personnel or under the employer’s supervision (or a person the employer tasked with this supervision). The consequence is the obligation to have a (rapid) test each day.
An exception allows employees to enter the workplace without providing the appropriate 3G proof to take advantage of their employer’s offer of a test or vaccination directly before commencing work.
Practical tip: Employers should inform all employees of the applicable workplace access rules in a form accessible to all.
The employer must monitor compliance with these provisions and confirm compliance regularly. For these purposes, the employer has the right to process relevant personal data and to use this data to adapt the workplace hygiene concept. The employer may also store information on the 3G status of employees. This allows employers to prove compliance with their control and monitoring duties. For example, employees can be asked to file proof of their 3G status (whatever proof that might be) in the electronic access control system.
Practical tip: To the extent necessary, an employer may ask for and document personal data such as the name of the employee, valid proof of 3G status and the period of validity of the 3G status. The employer may not use § 28b of the Infection Protection Act to collect or process other health data about employees. The employer also does not have a general right to ask about an employee’s vaccination status, except in certain facilities (e.g. care homes). The obligation only requires employees to provide te necessary proof of their 3G status. Accordingly, vaccinated and unvaccinated employees are not required to show their vaccination status but will comply with the law if they provide daily proof of a current negative test.
Providing the relevant proof will take comparatively little effort for those who are vaccinated against or have recovered from the virus: once the employer has checked the vaccination certificate or proof of recovery from the infection and documented it, employees with a valid vaccination certificate or proof of recovery can subsequently be excluded from daily access controls. It should be noted that any proof of recovery is only valid for a limited period and an expiry date may be imposed for vaccination certificates in the future. The obligation to provide proof of a negative test each day applies to employees who are unable or unwilling to provide a vaccination certificate or proof of recovery.
Costs and organisation of tests or inspection of tests
Employees are responsible for ensuring that they can present valid proof of their 3G status. The employee, therefore, bears the costs of daily tests.
Practical tip: Time taken to perform a test is not working time that needs to be remunerated as the tests should be performed directly before commencing work.
Employers are still required to offer a free test for the direct infectious agent of the SARS-CoV-2 coronavirus at least twice per calendar week to any employee who is not solely working from home. However, employers are not required to offer employees the opportunity to take a test under supervision so that the test to be recognised as proof of a negative test in terms of the 3G requirement.
Practical tip: As employees can use the free citizens’ tests, these tests, together with the tests offered by the employer mean free testing at least three days per week. Naturally, tests may require considerable effort for some employees, e.g., those who live in regions where there are few testing stations.
How the controls are organised will depend on the type and size of the workplace. When, for example, there are no security controls at the factory gate, one possible control point could be to require employees to report before starting work and present the required 3G proof. As explained above, another possibility is for the company to offer employees the option of taking a rapid test under supervision or testing employees at work.
Practical tip: Various sectors have criticized the 3G rule because it is almost impossible to manage and would prefer instead a 2G rule in the workplace (vaccinated or recovered from infection) or a law imposing compulsory vaccinations in general. In addition to the organisational expense, the problem with the 3G rule is that the workforce might learn who presents their 3G proof each day or who takes part in the tests in the workplace (and thus who is probably unvaccinated). This could lead to internal rifts. Employers should deal with this issue sensitively and bear it in mind when organising controls.
Does the works council need to be involved?
The question of “whether” the 3G rule should be introduced in the workplace is not subject to co-determination as it is a mandatory statutory requirement. The arrangements for 3G controls – the “how” the controls are to be carried out - can be subject to co-determination to the extent that the statutory framework leaves some leeway. The works council also has co-determination rights with respect to the practical implementation of the controls or how testing is carried out within the company, and when the controls and documentation will be carried out electronically.
Can there be any consequences for employees under employment law?
Employees who cannot work from home and do not want to present proof of their 3G status so that they cannot perform their work in the workplace must expect employment law consequences. Generally, the principle of proportionality will first require a written warning. Continued refusal to present proof of 3G status can ultimately lead to the termination of employment. In this case, the temporary nature of the 3G rule needs to be considered. When the employee is unable to perform their work because they have not presented proof of their 3G status, they will lose their entitlement to remuneration (principle of “no work, no pay”).
Threat of fines
The Infection Protection Act provides that fines of up to 25,000 euro can be imposed for infringements of the obligation to control and document proof of the employees’ 3G status.
Return of the obligation to work from home
The law also (re)introduces the obligation to work from home. All workers, who perform office or comparable work, should be offered the option of working from home. An exception applies only to the extent that there are urgent operational reasons that would prevent someone from working from home.
This could be the case where business operations would otherwise be significantly restricted or could not be maintained at all. In addition to office work, for example, the employee might be responsible for processing and distributing incoming mail, or for performing repair or service tasks (such as IT services). Special requirements concerning workplace data protection and the protection of trade secrets could also speak against working from home.
Employees must generally accept the offer to work from home. They can refuse the offer when there are “reasons opposed to it on their side”. These can include “insufficient space, disturbances from third parties, or unsatisfactory equipment”. There are exceptions when the employee doesn’t have enough space or is distracted, such as by children. The hurdles for employees are therefore significantly lower than they are for employers.
Practical tip: Employers must inform workers in an appropriate manner about the obligation to return to working from home. Depending on the type and size of the company, employees could be asked to inform their superior when they wish to work from the office on a specific day or specific recurring day and to provide the reason for this request.
It remains to be seen whether the adopted measures will be sufficient given the grave number of infections. Discussions about the possible introduction of a Federal law imposing compulsory vaccinations continues to gain momentum. The support for a law imposing compulsory vaccinations is already increasing.
Authors: Nadine Radbruch and Philipp Früh