Update on mandatory Corona testing offer for all employers and tightening home office requirement

With the dynamic development of the Corona pandemic, the frequency of new regulations to contain it is piling up. On April 20, 2021, the second amendment to the SARS-CoV-2 Occupational Safety and Health Regulation (SARS-CoV-2-Arbeitsschutzverordnung) (Link to German version) went into effect, requiring employers nationwide to offer their employees who do not work exclusively from their home office a Corona test at least once a week. Employees with an increased risk of infection were even to receive an offer for testing from the employer twice a week. In addition, employers were obliged to retain evidence of the procurement of the Corona tests or agreements with third parties regarding testing for a period of four weeks.

Three days later, as of April 23, 2021, the third amendment to the so-called Corona Occupational Health and Safety Regulation entered into force. Employers are now obliged to offer their employees a Corona test twice a week. The obligation to offer a higher number of tests to employees with an increased risk of infection no longer applies. However, the employer’s record-keeping obligations also continue to apply until June 30, 2021.

Employers must bear the cost of the tests. The Corona Occupational Health and Safety Regulation does not specify which tests employers must offer, so self-tests can also be offered.

Self-tests are intended for use by private individuals, so sample collection and evaluation is correspondingly simple. The test can be performed with a nasal swab or saliva, for example. Rapid antigen tests, on the other hand, can only be performed by trained personnel. A nasal and/or throat swab is taken. The evaluation takes place directly on site.

The employer’s duty to retain records does not include documentation of how many or even which employees actually took advantage of the test offer.

Despite the employer’s obligation to offer the test, participation in the test remains voluntary for the employee. In case of a positive test result, employees are obliged to inform their employer immediately. On the one hand, SARS-CoV-2 is a notifiable disease according to the Infection Protection Act (“IfSG”) and on the other hand, the obligation also results from the employment relationship. The employer requires this information in order to fulfill its duty of care and protection and to protect the health of all employees.

Employer’s right to compensation in the event of precautionary quarantine

With a positive antigen rapid test result, the person tested is considered a suspected case and must quarantine. Pursuant to Section 56 (1) Sentence 2 IfSG, a claim for compensation for loss of earnings now also exists in the event of such a precautionary quarantine, i.e. even before the quarantine ordered by the authorities. However, this only applies if working from home is not possible. The compensation is paid by the employer in accordance with Section 56 (5) IfSG. However, the latter can claim reimbursement by the competent authority.

The affected person must also contact a doctor or a suitable testing center by telephone to have a PCR test performed. If the result of the PCR test is also positive, the affected person must remain in quarantine. Positive PCR test results will be automatically forwarded by the laboratory to the appropriate health department.

Tightening of the home office obligation

Also effective April 23, 2021, Infection Protection Act has been amended. The newly inserted Section 28b IfSG includes the obligation for employers to offer their employees to work from home in the case of office work or comparable activities unless there are compelling operational reasons to the contrary. The home office obligation is thus removed from the Corona Occupational Health and Safety Regulation and incorporated into the Infection Protection Act. The obligation to work from home is now extended to the effect that employees are obliged to work from home unless there are reasons to the contrary. This change means that employees are no longer free to choose whether or not they work in the office. They must at least inform the employer of the reason why it is not possible for them to work at home. The home office requirement will apply for the duration of the German Bundestag’s determination of an epidemic situation of national scope, however no longer than June 30, 2021.

Employers are recommended to document the presence of and reasons for employees’ activities in the office in order to be able to demonstrate compliance with the home office obligation pursuant to Section 28 b (7) IfSG.