On 18 November 2021, the German Bundestag passed an amendment to the Infection Protection Act (Infektionsschutzgesetz, IfSG) on the proposal of the “traffic light parties” (which will most probably form the next federal government) in order to be able to impose protective measures against the coronavirus even after the end of the “epidemic situation of national significance”. Following approval by the Bundesrat, the amendments will presumably come into force on 22 November 2021. In view of the current very sharp rise in the number of infections in Germany, the legislator hopes to be able to break the “fourth wave” with these measures. We have summarized the most important changes from an employer’s perspective in this article.
Termination of the “epidemic situation of national significance”
Until now, the determination of an “epidemic situation of national significance” was the legal basis for severe restrictions to combat the pandemic, which allowed, for example, the general closure of schools, restaurants and shops, but also mandatory regulations on remote work and even company closures. With the end of the epidemic situation on 25 November 2021, a nationwide lockdown will no longer be possible in the future. Nevertheless, the parties recognize that uniform nationwide measures are still needed to control the crisis.
Introduction of the “3G rule” in the workplace (vaccinated/recovered/tested)
The most important new regulation for employers is the introduction of the 3G rule at the workplace. From 22 November 2021, access to the workplace will only be possible if employees can prove that they have either been vaccinated or have recovered. Employees who do not provide this proof will each be required to provide proof of a rapid test, which must be no more than 24 hours old. Alternatively, a PCR test can also be presented, which must not be older than 48 hours.
Workplaces are defined in Section 2(1) and (2) of the Workplace Ordinance. This includes:
- Workrooms or other locations in buildings on the premises of an establishment,
- Outdoor locations on the premises of a business,
- Places on construction sites, provided they are intended for use for workplaces.
The place of work also includes in particular:
- Places on the premises of a company or construction site to which employees have access in the course of their work,
- Traffic routes, escape routes, emergency exits, storage, machinery and ancillary rooms, sanitary rooms, canteens, break and stand-by rooms, first aid rooms and accommodation.
The employer must monitor and document compliance with the “3G rule”. For this purpose, the new Infection Protection Act provides that evidence of vaccination or recovery can be “deposited” with the employer. This provides a basis under data protection law for the processing of this category of data by the employer. As this is health data, particular care must be taken when handling this data. It must be stored in such a way that access to it is restricted to the most necessary group of persons. Furthermore, this data may only be used for the purpose of proving access to the workplace and may be stored for a maximum of six months. If the access restriction ceases to apply, the data may have to be deleted earlier. Employer violations of the monitoring and verification obligations are subject to fines. The law provides for a fine of up to EUR 25,000.00.
Implementation in detail still unclear
At present, the details of the concrete implementation of the measures by the employer are still unclear. However, it is encouraging that the law allows the vaccination and convalescence status to be stored, so that daily checks will no longer be necessary for this group of people. For employees who have neither been vaccinated nor recovered, the concrete implementation of the tests has not yet been fully clarified. In our legal opinion, the testing is a legal requirement for access to the workplace that must be fulfilled by the employee and must therefore be carried out outside working hours. For this purpose, employees can take advantage of the reintroduced free tests available to all citizens in Germany. Furthermore, the obligation for employers to offer employees a (quick) test twice a week remains. However, this must be carried out under supervision if it is to be used as proof of access to the workplace. This obligation on the part of the employer to offer a test twice a week is currently to remain. That should make clear that untested employees will (also) have to look for other testing opportunities in order to have the possibility to work in the company throughout.
The nationwide introduction of the “3G rule” in local and long-distance public transport was also decided. This is also important for employers because, on the one hand, many employees rely on the use of local transport to reach the company and, on the other hand, this measure must also be taken into account when arranging and carrying out business trips.
The amendment provides that the necessity of implementing the new measures is ordered by the Bundestag. If no new decision is taken within three months, the measures will cease to apply. Overall, the newly introduced measures are currently limited in time until 19 March 2022.
Employers must offer “remote work”
The amendment to the Infection Protection Act also stipulates that the employer must offer remote work to all employees who perform office work or comparable activities, provided there are no compelling operational reasons to the contrary. Employees must accept this offer if it is not unreasonable for them to do so. Thus, the federal legislator has re-established the obligation to work remotely, previously introduced during the “third wave” and terminated in July 2021. For the employer, this means that any employee who performs a task suitable for remote work must be offered to perform this work from home. The employer may only refrain from making such offer for compelling operational reasons, such as if the technical requirements for working from home are not met. It is also possible for the employer to refrain from offering remote work because the employee is needed on site for compelling reasons (for example, to process physical mail or to staff the reception desk or a counter). Operational reasons, such as the lack of laptops, can also stand in the way of an offer to work remotely. Employees can only refuse to work at home to a very limited extent, for example if the limited space in their own home or the disturbing influences of third parties or the inadequate equipment of the home do not allow them to work there.