On 16 February 2022, the German Federal and Länder Governments decided to lift and reduce key Corona measures by 20 March 2022. The public debate about mandatory vaccinations has also picked up speed, making it a good time to look at the so-called “institution-related mandatory vaccinations,” which will take effect on 16 March 2022.
(Institution-related) Mandatory vaccinations
In December 2021, the legislator introduced “institution-related mandatory vaccinations” for certain areas of the healthcare sector (§ 20a Infection Protection Act, Infektionsschutzgesetz, IfSG). At first, the new rules only affected healthcare facilities (“institution-related”). However, a closer look revealed that mandatory vaccinations will also apply to some employees outside of the healthcare sector. Against this background and considering the possible imposition of general mandatory vaccinations, employers from other sectors should keep a close eye on the arrangements and employment consequences for the new rules.
The substance of the new rules
The new rules don’t impose mandatory vaccinations; they impose a duty to provide certain evidence of immunity. By 15 March 2022, persons working in healthcare, aged care, and other care facilities must either present a vaccination certificate or proof of recovery from the virus (“2G proof”) or provide a doctor’s certificate to show that they cannot be vaccinated for medical reasons. When the 2G proof expires, the employee must present a new certificate within one month.
The submission requirement is based on activities within the facility and is not limited to employees of the facility. It also includes external persons who are not just temporarily (for a few minutes) at the facility (e.g., tradesmen). Actual contact with persons from vulnerable groups is generally irrelevant; persons working in the administration department will also be required to submit their 2G proof.
This makes it clear that the duty to provide the relevant certificates not only applies to companies active in the healthcare sector, but also to manufacturers of medical and medical technology products, as well as to various service companies (e.g., cleaning companies, tradesmen, etc.), where their employees visit healthcare facilities that are covered by the measures.
If the 2G proof is not submitted by the deadline, or if there are doubts about its validity, employers must inform the responsible health authority, which can then impose orders (e.g., disqualification from the practice of certain activities).
Practical tip: The law does not say what form the notification and submission of personal data to the health authority must take. Accordingly, an email will be sufficient. For good measure, the employer should ask the authority to confirm receipt of the email.
Persons who start working for a healthcare institution after 16 March 2022 must submit the evidence before they start work, i.e., they can only be active in the facility after valid 2G proof has been presented. Accordingly, from 16 March 2022, there will be a statutory disqualification from the practice of certain activities for new recruits who fail to provide 2G proof, while “existing employees” will only be disqualified where the relevant health authority orders. Employers and employees may be fined up to EUR 25,000 for an infringement of an order or the statutory disqualification.
Employment law consequences
Where a statutory or ordered disqualification applies to the employee and said employee cannot work elsewhere (e.g., outside of the facility or from home), the employer will no longer be obliged to pay the employee following the principle of “no work, no pay.”
Practical tip: Employers should decide how they want to deal with employees who fail to fulfil the statutory requirements. If an employee can’t work elsewhere (e.g., from home, as might be the case for a nurse or someone providing nursing care for the elderly), the employee will be disqualified from that work upon the entry into force of the law and the employer won’t have to pay the employee any longer. In light of the strict jurisprudence of the Federal Labour Court on the topic, it will only be possible to issue a notice of dismissal to the employee on personal grounds because they are no longer qualified to perform the work in exceptional circumstances.
If an employee persistently refuses to present the appropriate proof and they are likely to be permanently unemployable due to disqualification, the employment relationship can be terminated on conduct grounds, providing the employee previously received a warning for relevant conduct.
Companies that have at least a connection to the medical and healthcare sectors should assess whether employees are employed in facilities that fall under § 20a of the IfSG. If an employee is not only temporarily active in such a facility so that 2G proof is required, the employer must demand that employees submit the relevant proof.
End of the obligation to work from home
Although numerous employees are affected by the new rules in § 20a of the IfSG, the key statutory measures for the protection against the Coronavirus and the related requirements on employers will, for the most part, end on 20 March 2022. The exact timeline for the abolition of each measure is still unknown and depends on the relevant Land. However, the current obligation to work from home in accordance with § 28b (4) of the IfSG will expire on 19 March 2022. This is likely to raise the question of whether employees will have to return to work from the office or whether they can continue, at least in part, to perform their duties from their home office.
Loss of the statutory special entitlement
In the wake of the Corona pandemic, legislators introduced a transitional statutory entitlement to work from home for the first time. The elimination of § 28b of the IfSG also eliminates this statutory special entitlement. Unless employers and employees have reached an agreement on remote work, the employer can use its right to give directions and order employees to return to work at the office (this is also in line with the judgment of the Regional Labour Court of Munich of 26 August 2021 in Case No. 3 SaGa 13/21).
As many employees wish to continue working from home or working remotely, at least sometimes, many employers have already developed appropriate concepts. Where possible, employers should exercise their right to give directions and authorise employees to work from home or work remotely, rather than grant employees a right to work from home or work remotely. This has the advantage of making it easier to have the employee return to work in the workplace.
It should also be noted that the term “home office” is not legally established. Colloquially, home office is often used as a synonym for both legally established terms, “teleworking” and “remote working”. The primary difference between the two is that the Workplace Regulation applies to telework and requires the installation of a fixed workplace with a monitor in the employee’s private dwelling. In contrast, the Workplace Regulation does not apply to remote working: employees can perform their work from any place they wish within Germany, without any difficulties, via an IT connection to the company. The Coalition Treaty for the current “traffic light” Government intends to keep both working from home and teleworking as permitted forms of remote working. In particular, the Treaty proposes to give employees the right to request to work from home or remotely. Employers should only be able to refuse this request on operational grounds. (Urgent) “Operational issues” can also be found, for example, in the Federal Leave Act (Bundesurlaubsgesetz) or the Act on Part-time and Fixed-term Employment Contracts (Teilzeit- und Befristungsgesetz). Sometimes the law establishes presumptive examples, sometimes the courts have further defined the term in individual cases. The same can be expected for “operational grounds” in relation to the request to work from home. Naturally, the specific nature of the work may constitute an operational ground that would be opposed to working from home. The nature of the work of an employee working in an assembly line in a production facility could conceivably prevent that employee from working from home. The Coalition Treaty also intends to make it possible for employees to work remotely within the EU. Currently, employers face significant risks if employees work remotely in another EU Member State (e.g., the possible establishment of a permanent establishment for tax purposes in that Member State).
Possible arrangements employers can make
Unless they have done so already, employers should develop flexible working arrangements. We recommend that these be based on the employer’s right to make directions. In addition to avoiding giving the employee a right to work from home, this approach avoids the administrative burden of concluding a separate contract with each employee. As the works council has a co-determination right with respect to the structuring of mobile work in accordance with § 87 (1) No. 14 of the Works Constitution Act (Betriebsverfassungsgesetz), the employer may also conclude a works agreement with the works council establishing the details for remote work. The co-determination right covers, for example, the rules about the duration of remote working, the start and end of daily working hours for mobile work, and the place from which employees may work remotely.
Practical tip: Employers should set detailed uniform rules that employees must comply with when working from home/working remotely (e.g., exclusive use of an encrypted wireless network).
The 3G rule for access to the workplace and rapid antigen tests are dropped
The lift of the statutory measures for protection against the Coronavirus affects, in particular, the 3G obligation in the workplace (§ 28b (1) of the IfSG). This means, from 20 March 2022, employees are no longer required to show that they are immune (vaccinated, recovered or tested) unless the obligation to provide evidence for work in a healthcare, aged care, or other care institution applies (§ 20a of the IfSG, see above). Accordingly, this also means employers no longer have to check the status of employees (vaccinated, recovered or negative test).
Practical tip: In a few exceptional cases, such as where special circumstances exist or all employees consent, employers may continue to check the 3G status in the workplace on a “voluntary” basis. This could be the case where the check forms part of a particularly strict hygiene concept within the workplace or where it is justified by the circumstances (e.g., the workplace employs persons who are particularly worthy of protection).
Apart from that, employers must continue to offer employees two rapid antigen tests per week (§ 4 (1) of the Covid-19 Occupational Health and Safety Regulation (Covid-19-Arbeitsschutzverordnung)) and provide medical-grade protective masks (§2 (2) of the Covid-19-Arbeitsschutzverordnung). With the lapse of the regulation on 20 March 2022, these obligations will also cease to apply to employers. How exactly employers will continue to ensure basic protection and which specific measures they will have to follow remains to be seen. We will let you know.
Authors: Laura Hagen, Jonas Türkis