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The new Corona Worker Protection Regulation provides a legal obligation on employers to test, but not an obligation on employees to be tested – The important FAQs

Submitted by Firm:

The pandemic remains very dynamic. Questions on the treatment of employees continue to arise daily. Legislators are constantly adjusting. Hubertus Heil, the Federal Minister for Labour and Social Affairs introduced amendments to the Coronal Worker Protection Regulation (Corona-Arbeitsschutzverordnung, Corona-ArbSchV) on 13 April 2021. The Regulation aims to prevent the spread of the virus within the workplace and to avoid infections. To achieve this purpose, the Regulation makes it compulsory for employers to provide corona tests. However, there is no obligation on employees to take these tests. This new test obligation raises questions about how companies should implement the Regulation. As of 19 April, companies have been required to supply corona tests. Companies that fail to comply with this order may be fined.

We’ve put together the most important FAQs and their answers for you.

When and to whom does the test obligation apply?

From 19 April 2021, the newly introduced §5 (1) of the Corona-ArbSchV applies, which provides that those employees, who are not able to work entirely from home, should be offered a corona test at least once a week. In special situations (§5 (2) of the Regulation), the employer must even provide two tests per week. This applies to

  • employees living in shared accommodation,
  • employees working in closed climate-controlled rooms,
  • employees of businesses that provide personal services,
  • employees, who have contact with other people through their activities and those other people are not required to wear mouth and nose protection,
  • employees who have contact with numerous people.

The new Regulation does not provide a real compulsory test obligation. Instead, employers are merely required to provide tests; employees are not required to take these tests

Are employers required to provide specific types of tests?

Employers can offer various tests, such as PCR tests or rapid tests for the antigen.  

Where do the tests have to be carried out?

This depends on which test method is chosen. The Regulation does not provide any rules on this issue.

Practical Tip:

Provide tests that don’t require any special knowledge.

Tests that do not require special knowledge should be performed at home. This increases trust and reduces some of the organisational issues. The new rules have already entered into force. Failure to comply can result in fines of up to EUR 30,000.

Do employees need to inform their employer if the test result is positive?

This is also not covered by the Regulation.

Practical Tip:

Employees should therefore be required to inform their employer if they test positive. Here: the fewer people within the company know about the positive test result, the better (for the protection of the employee’s personal data). Specifically, for companies this means:

Positive test results should be notified (per email or through a test app) with evidence to a specific person (position) within the company. Information must be stored confidentially (access and authorisation concept). The information should not be stored in personnel files, but separately so that it is well protected. In the case of a positive test result, the central department within the company should only inform the employee’s direct superiors that the employee will not be coming into work.

How long can the test results be saved?

The information should not be saved for more than four months. This means that four months after receiving the information, at the latest, the information should be deleted (a change to the deletion concept under data protection law).

Practical tip:

Central processing reduces the work required to delete the information and ensures that there are binding responsibilities.

Can employers order employees to take a rapid test?

Under certain circumstances, employers can order employees to take a test, based on the right to give directions (§ 106 Industrial Code, Gewerbeordnung).

Practical tip:

When exercising the so-called direction right, the employer must consider the interests of the employee and weigh them up with their own interests. Where employees have frequent contact with customers or the rules of the latest Corona Workplace Health & Safety Regulation (such as on regular airing in manufacturing halls) cannot be implemented in the circumstances, employers can order employees to take a corona rapid test. This will only be the case where it is not possible to take other protective measures. The data protection requirements should also be observed.

Does the works council have co-decision rights?

Generally, the works council will have co-decision rights under § 87 (1) No. 1 and No. 7 of the Works Constitution Act in relation to the introduction of compulsory rapid corona tests. In any case, the works council will only have a right of co-decision when the legislator has left some playing room for the implementation of regulations. This means, the more specific the rule that needs to be implemented is, the less room there will be for the works council to exercise their right of co-decision.

Does the employer have to pay for the time used to take the test as working time?

The answer is no. As the legislator has only imposed an obligation on employers to offer tests, it is not working time. 

The fact that certain Länder (such as Saxony and Berlin) have introduced compulsory testing in certain circumstances does not change this result. The rapid corona tests are in the employee’s personal interest, as well as in the company’s interests and the interests of the general public. This means: test time is not generally working time and the employer should not compensate it as such.

How should you treat those who refuse to be tested?

As part of a proportionality test, employment law sanctions can be successfully imposed on employees who refuse to be tested when the individual circumstances of the company (local and temporary occurrence of infection) make protective measures necessary, such as conducting rapid tests. In particular, where the incidence value or local infection rate is high, employers will have a duty of care to their employees that they must fulfil in the best possible way and minimise the contagion risks as much as possible. In such a case, the employer might, in line with its right to issue directions (and with the involvement of the works council), order that rapid tests be conducted. Access to company premises can be refused for those refusing to be tested, with the consequence that they lose their claim to pay where they cannot perform their duties from home.

Corona and new legal issues arising constantly?

Further legal questions arise in connection with the pandemic, and not just about rapid tests (e.g. the imposition of compulsory corona vaccinations by the employer and how this can be implemented).

The judgments in the first few legal cases on the corona test have been handed down (Judgment of the Labour Court of Offenbach of 4 February 2021 in Case 4 Ga 1/21) but are not final and binding. The suspense remains: which new legal questions will the corona crisis raise? We’ll keep you up to date.

Authors: Dr Michaela Felisiak and Dr Dominik Sorber