Social Distancing after Return to Work

For Thursday, 18 November 2021, the German parliament is scheduled to vote on a renewed amendment to the Infection Protection Act. According to press reports, the so-called Traffic Light Coalition’s (Social Democratic Party of Germany, Free Democratic Party and Alliance 90/The Greens) parliamentary groups plan to pass various regulations that could have implications for employers and employees.

Thus, the so-called 3G rule at the workplace, i.e. only vaccinated, recovered or tested are granted access) already implemented in Bavaria, is to apply nationwide. Employers and employees would only be allowed to enter their workplace upon presentation of certificate proving a vaccination against, recovery from Covid-19 or current negative test certificate. This applies to persons for whom direct contact with others – such as colleagues or customers – cannot be ruled out. Exceptions shall apply only for brief outdoor contacts.

Tests must be performed daily by rapid test (max. 24 hours old) or PCR test (max. 48 hours old). The reason given for the longer validity of PCR tests is that they would otherwise not be usable due to the longer evaluation time. A mere self-test performed by employees is not sufficient. Rather, employees must present appropriate certificate.

Employees are to be responsible for presenting a certified test, for example in the form of the so-called free “citizen test”. However, the Traffic Light Coalition have already announced that the obligation for employers to offer free tests twice a week in the company (§ 4 SARS-CoV-2 Occupational Health and Safety Regulation) should continue to apply. It is unclear who will have to bear the costs of tests beyond this if a free citizens’ test is not or cannot be taken up.

Stricter rules also apply in particularly vulnerable care and health facilities. There, vaccinated and convalescent persons are also to be subject to regular testing. This also applies to visitors, whereby parcel delivery persons and craftsmen are also to be explicitly included. The facilities are to be obliged to offer appropriate testing facilities.

Establishments will also be required to monitor evidence of vaccination, recovery or testing status in relation to Coronavirus Disease 2019 (COVID-19) and to document the results. For this purpose, employers shall be granted a right of access to the processing of personal data relating to the vaccination, recovery or test status. Inadequate control or documentation shall constitute an administrative offence under the change in law, so that there could be the threat of proceedings for a fine. The personal health data is to be deleted as of March 19, 2022.

In the future, employers in hospitals, nursing homes and institutions for the disabled will have to report the vaccination rate of employees as well as patients or persons in need of care to the responsible authorities every two weeks in anonymous form, otherwise they will also be subject to fines.

It is also not (yet) expressly regulated which consequences occur if employees do not comply with their obligation to provide a certificate of vaccination, recovery or testing. The violation of the legal obligation certainly constitutes a breach of duty, which can be warned and, in the case of persistent refusal or in the case of repetition, can even lead to dismissal. Moreover, the principle of “no work, no pay” is likely to apply. This applies in any case if employees cannot perform their work in the home office.

The third major change currently planned is the reintroduction of a home office obligation. According to the draft, employers shall be obliged to offer employees the opportunity to work from home in the case of office work, unless there are compelling reasons not to do so. Employees, in turn, would be obliged to accept the offer unless there are compelling reasons for them not to do so. Such reasons could exist on the part of the employer if business processes were significantly restricted, while employees could invoke possible disturbances by third parties or spatial confinement. The wording of the draft corresponds to the home office obligation that already existed in the first half of 2021.

The measures are to be limited until March 19, 2022, with the possibility of a three-month extension by the parliament.

The planned amendments are based on a draft that is to be discussed in and passed by the Bundestag next Thursday, November 18, 2021. Changes are therefore still possible, although there appears to be agreement in principle among the designated government factions. A meeting of the Bundesrat is also scheduled for Friday, November 19, 2021, so that it could also agree to the amendments this week and a prompt implementation is likely. When the new regulations will actually come into force precisely is still unknown. However, it is expected that this will be the case at the latest when the “epidemic situation of national importance” expires on November 25, 2021.



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