Corona Safety: Employers must offer all employees a corona test

On April 13, 2021, the German Federal Cabinet agreed to add a mandatory testing offer for all employers into the SARS-CoV-2 (Corona) Occupational Health and Safety Regulation. At the same time, all provisions of the Corona Occupational Health and Safety Regulation will be extended until June 30, 2021, such as the implementation of hygiene concepts and distance rules in workplaces. At the same meeting, the German Federal Cabinet also approved an addition to the Infection Protection Act to include a “Federal Emergency Brake.”

All employers must offer testing in the future

Under the new Occupational Health and Safety Regulation, all employers are required to offer regular self-tests and rapid tests in their companies to all employees who do not work exclusively in a home office. In principle, the employer must enable every employee to carry out a self-test at the workplace at least once a week. For all employees who are particularly at risk, the employer must offer at least two self-tests per week. A mandatory test offer previously existed only in Berlin due to a state-specific ordinance.

The particularly risk groups are defined in more detail in the regulation. The extended offer refers to

• employees housed in shared accommodations,
• employees working under climatic conditions favorable to the spread of the virus,
• employees in establishments providing personal services where direct physical contact cannot be avoided,
• employees who must have operational contact with others who are not wearing mouth-to-nose protection,
• employees who enter into frequently changing contact with others as a result of their work.

The costs for the tests must be borne by the employers. The Occupational Health and Safety Regulation does not impose any obligation on employees to take advantage of the tests; under the Corona Occupational Health and Safety Regulation, this is voluntary. In contrast, the state-specific regulation in force in Berlin provides for mandatory testing for employees who are in contact with customers.

The regulation will enter into force on the fifth day after promulgation. We expect the promulgation in the Federal Gazette in the next few days, so that the testing obligation should then become binding for all employers next week.

“Federal Emergency Brake”

Following a decision by the German Federal Cabinet, an interesting amendment to the Infection Protection Act is due to be made shortly. The idea is to supplement it by introducing a “Federal Emergency Brake”. This law stipulates that the federal government will temporarily oblige the districts directly to implement the “emergency brake” as soon as the 7-day infection incidence passes 100 on three consecutive days. This would then directly entail the closure of retail (except food and daily needs), catering, cultural and recreational facilities. Under the emergency brake, group sports would also be prohibited, and a general curfew from 9 p.m. to 5 a.m. would apply. Private meetings in one’s own home will then only be allowed with one person from outside the household.

The federal government and the states had already agreed on such an “emergency brake” in talks, although the responsibility for implementation had previously rested with the states. As a result, the “emergency brake” was implemented very differently from region to region. The “Federal Emergency Brake” is now, about 13 months after the mass occurrence of corona in Germany, intended to contribute to more uniformity in the measures to combat corona.

The amendment to the Infection Protection Act is to be discussed and passed in the Bundestag and Bundesrat in an expedited procedure so that the “Federal Emergency Brake” is available as quickly as possible as a means of combating the pandemic. At present, however, it is not yet possible to predict when the amendment to the Infection Protection Act will enter into force.