Since November 9, 2021, the so-called 3G regulation (3G: Vaccinated, recovered or tested) applies in all workplaces in Bavaria. Throughout the entire state, access to the workplace in all companies with more than 10 employees is now only permitted if the person is either vaccinated, recovered or currently tested. This applies as long as more than 600 hospital beds in intensive care units are occupied with COVID-19 patients nationwide.
Following the Bavarian initiative, other Federal States have announced their intention to follow the Bavarian example, although this has not yet been implemented in concrete terms. In view of the challenges of the “fourth wave” and in order to simplify the handling of such an access restriction, a nationwide uniform regulation by the Federal Government would certainly be desirable. Against this background, the negotiating partners of the likely future coalition that will form the new German government have announced that they will draft legislation for new measures to help contain the COVID-19 pandemic. It is expected to be passed by the German parliament (Bundestag) on Thursday, November 18, 2021.
On November 3, 2021, the Fourteenth Bavarian Infection Protection Measures Ordinance (BayIfSMV) came into force. Among other things, it provides for the introduction of the 3G regulation in the workplace, which is a novelty in Germany so far. The obligation to implement compliance with the 3G regulation at the workplace is linked to the occupancy rate of Bavarian intensive care units in hospitals with COVID-19 patients. If the so-called “hospital traffic light” system in Bavaria jumps to red (meaning the greatly increased intensive care bed occupancy), this is officially announced in the Bavarian Ministerial Gazette. From the following day, access to the workplace will only be open to vaccinated, recovered or currently tested persons. The company owner or CEO is also affected by this. The “hospital traffic light” jumps to “red” when, according to the figures of the German Interdisciplinary Association for Intensive Care and Emergency Medicine e.V. (DIVI), more than 600 intensive care beds are occupied by COVID-19 patients. This was the case in Bavaria on November 8, according to the DIVI.
Compliance with the 3G regulation at the workplace in accordance with § 17 BayIfSMV is mandatory for all establishments with more than 10 employees (including owners/managers) in the case of greatly increased intensive care bed occupancy, if the employees may have contact with other persons during their working hours (either with persons outside the establishment or among the employees). It only applies where if work activities are carried out indoors. The employer must then monitor compliance with 3G and may only allow employees to enter the workplace if they provide evidence of vaccination against or recovery from COVID-19, or have tested negative at least twice a week.
Employees who do not provide appropriate proof must not have access to company premises. If they are unable to perform their work duties as a result, the employees concerned must expect to lose their entitlement to remuneration.
The 3G restrictions will end on the day following the announcement by the Bavarian State Ministry of Health and Care in the Bavarian Ministerial Gazette that fewer than 600 Bavarian intensive care beds have been occupied by COVID-19 patients for three consecutive days.