Corona Update: Elimination of the Home Office Obligation

At the German Conference of Minister Presidents, the federal and state governments agreed to amend the Infection Protection Act (IfSG) with the elimination of most COVID-19 protective measures. The decision is part of the “three-step” plan to open up the country during the COVID-19 pandemic, which was already agreed on February 16, 2022. After private gatherings for vaccinated and recovered people have been allowed again without a limitation of the number of participants, and gastronomy and overnight accommodations can operate in compliance with the 3G regulation, the 3rd step of the openings now followed.

With effect from March 20, 2022, most measures to protect people from a COVID-19 infection have largely fallen. Basic protective measures, such as mandatory masking and testing for groups and facilities with a special need for protection, e.g. hospitals, care facilities and schools, will remain in place. More restrictive measures may be disposed by each federal state in the future according to hotspot regulations in the event of a localized outbreak or threatening infection situation.

This decision also entails some relevant changes for employment law:

• Probably most pertinent is that the currently applicable home office obligation, which is governed by sec. 28 b (4) of the Infection Protection Act, will not be extended. However, employers can still continue to offer the possibility to their employees to work from home on a voluntary basis, if there are no operational reasons preventing this and if the interest of infection protection is not unopposed (e.g. in large-scale offices). Company agreements on hybrid working can also be concluded individually.
• The 3G-regulation at work will no longer apply. As of March 20, 2022, employees will no longer have to provide proof that they have been vaccinated, recovered or tested. There is no longer a legal basis for the employer to demand proof. A different regulation applies to all employees who work in hospitals, care facilities, doctors’ offices or comparable workplaces. These are affected by the facility-based vaccination obligation in the healthcare sector and have to prove that they have been fully vaccinated or have been recovered since March 16, 2022.
• Also, the SARS-CoV-2 Occupational Health and Safety Regulation was limited until March 19, 2022. In the new draft bill, some adjustments and innovations were made, which have been in force since March 2022 and are planned to remain in place as basic protective measures until May 25, 2022. The COVID-19 protective measures are thus no longer directly prescribed, but can be disposed by the companies themselves. Companies can establish an operational hygiene concept on the basis of a risk assessment (§§ 5, 6 of the German Occupational Safety Act). As part of the risk assessment, the employer must check in particular whether and which measures are necessary to ensure the safety and health of employees at work. In this context, both, the local infection situation and the work-specific infection hazards, e.g. spatial conditions, must be taken into account. However, it is no longer stipulated that the vaccination or convalescent status of employees be taken into account in this regard. Corresponding information must be deleted by March 20, 2022 at the latest for data protection reasons, as employers will no longer have any legal basis for retaining this data after that date. If the hygiene concept requires to wear a mask, employers must continue to provide the access to free masks. In addition, companies are obliged to offer a free COVID-19 test for employees at least once per week and to contribute the reduction of personal contacts in the workplace. This means that measures concerning the minimization of the risk of infection will not be completely eliminated.
• The temporary special provision in sec. 129 (2) of the Works Constitution Act, under which works council meetings and youth and trainee meetings could be held digitally until March 19, 2022, expired. However, in the meantime, the German Bundestag has already granted works councils the permanent option of holding meetings via video and telephone conference under framework conditions set by the works council itself in May 2021 with the Works Council Modernization Act, while maintaining the priority of face-to-face meetings.
• Employees will also continue to have the option to get doctor’s certificates for respiratory illnesses and cold symptoms via telephone without going to the doctor’s office until May 31.

Many German states have already announced that they will make use of the transition period until April 2, 2022 due to the high incidence figures, including Berlin, Brandenburg, Bavaria, Baden-Württemberg, Lower Saxony, Hamburg, Bremen, Mecklenburg-Western Pomerania, Hesse and Thuringia. During this transition period, federal states can opt to temporarily uphold the previously applicable Corona measures.