The new regulations in overview

Mainly, Sec. 28b of the German Infection Protection Act (IfSG) will be supplemented by new or old regulations, which are expected to apply nationwide from calendar week 47:

Sec. 28b IfSG (new version) shall include:

• Reintroduction of the obligation to work from the Home Office, already in force until 30 June 2021, regarding office or comparable employees, and
• Introduction of the 3G rule at the workplace to access the business site.

Obligation to work from the Home Office

As expected from calendar week 47, the general obligation to work from the Home Office for employees in office work will apply again. For this purpose, the previous wording from Sec. 28b (7) IfSG (old version), as already contained in the IfSG (old version) until June 30, has been reintroduced in Sec. 28b (4) IfSG (new version).

In specific terms, this means that employers are in principle again obliged to offer work from home and that the employees must in principle accept this offer.

In the course of the reintroduction, we assume that the same requirements that already applied from April 30 to June 30 this year will also apply again in the future.

Exceptions are provided for if "compelling operational reasons" on the employer's side prevent a remote activity with regard to an individual employee. This is likely to be the case only in exceptional cases of significant operational disruptions.

In principle, the employee is obliged to accept the offer unless there is a reason not to do so. This provides a wide scope for arguing that, in individual cases, work should be nevertheless carried out from the office, e.g. because there is insufficient space in the employee's home or the employee does not have his or her own workplace. The parties involved thus retain a certain degree of flexibility here. The legislator has not made use of the possibility of a "stricter" obligation to work from home.

3G rule at the workplace

Until now, employers in Germany were only required to provide at least two free tests under the SARS-COVID- 19 Occupational Health and Safety Regulation. However, employees were free to decide whether to make use of this offer. Initial federal state regulations (e.g. in Bavaria and Hesse) had already introduced the 3G rule in the workplace in last weeks. These state regulations are now expected to be superseded by a uniform federal regulation in Sec. 28b IfSG (new version) as of calendar week 47. When coming into force, the 3G rule is to apply until 19 March 2022, regardless of whether an epidemic situation has been identified. This is also a new development.

First of all, it is important that the new federal regulation shall apply regardless of incidence or hospitalization values, etc. Until now, the federal state regulations were linked to when certain measured thresholds were surpassed.

Employees who cannot provide respective 3G evidence as defined in Sec. 2 of the COVID-19 Protective Measures Exemption Regulation (SchAusnahmV) may not enter the workplace if contact between the employer and employees or with third parties cannot be excluded. This also applies to the transport of employees to and from the workplace. The 3G obligation has thus been extended locally and no longer applies only in enclosed office spaces. There is also no limitation to a minimum number of employees. This should mean that the great majority of companies in Germany will be obliged to comply with the 3G rule.

In principle, a rapid test is also sufficient as proof of testing. In the sense of Sec. 2 No. 7 SchAusnahmV, sufficient test evidence is, in addition to PCR tests, any rapid test that is no older than 24 hours and:

• is performed on site under the supervision of the employer; or
• has been performed by qualified personnel (e.g., company doctor); or
• has been performed and supervised by an external body according to Sec. 6 of the Coronavirus Test Regulation (e.g. medical doctors, test centers).

A PCR test result is valid for 48 hours according to Sec. 28b (4) (new version).

In order to carry out a test as defined by the SARS-COVID-19 Occupational Health and Safety Regulation, it is now expressly stipulated that employees are also allowed access without prior proof. However, there is no obligation of employers to offer a test that meets the above requirements in accordance with Sec. 2 No. 7 SchAusnahmV. The decision as to whether or not to take on this additional organizational effort is left to the companies.

The employer must check compliance with the 3G rule before accessing the workplace. This can be done by internal or external personnel (e.g. a security company).

The new measures could be referred to as an "indirect right to question", since in practice, most employees will probably provide information about their vaccination status. However, it remains the case that employees – with the exception in sensitive areas – are not obliged to disclose their vaccination status to the employer, as there is still no legal basis for this. This means that the employee is free to choose as to which of the three "G's" he/she will provide proof of. In fact, however, vaccinated employees likely will report their vaccination status to the employer as part of the checks.

A new regulation is that proof must either be carried or kept available for inspection or can be deposited with the employer. This applies to all types of proof: vaccination, recovery and tests. This means that in the future, employees will be able to exempt themselves from the daily presentation of proof by showing and "depositing" their proof of vaccination with their employer once.

There are good arguments that the time for taking a test is not considered working time, since the test is not solely in the interest of the employer, but significantly in the interest of the employee, who chooses to present a test result instead of proof of vaccination or recovery in order to access the workplace.

In Sec. 28b IfSG (new version), explicit reference is now also made to data protection law.

Employers will be allowed to collect and store the data as part of access controls and to use it in relation to the company hygiene concept. The special protection requirements of Sec. 22 (2) of the German Federal Data Protection Act (BDSG) for special categories of personal data apply.

The planned changes do not cover how to deal with employees who refuse to comply with the testing obligation despite not having been vaccinated or recovered. Provided that working from home is possible from a company organizational point of view, the employer will generally be obliged to accept the work performance from home. If working from home is not possible and the employee refuses to comply with the 3G rule, the obligation to pay remuneration generally does not apply. Compensation for loss of earnings under the recently amended Section 56 IfSG is also likely to be excluded, since the 3G rule creates a specific preventive measure and compliance with it could have prevented loss of earnings.

Outlook

It is good that employers are finally given the opportunity to adequately protect their employees based on better information and to obtain an overview of the vaccination rate in the company. The planned simplified monitoring options, especially with regard to vaccinated employees, are also a positive change.

It is to be welcomed that employees must now also present a rapid test result every day and no longer only on 2 days a week and that employers may store the (voluntarily) communicated vaccination status and use it for the company hygiene concept. The changes relieve companies which are not expected to allow non-vaccinated individuals to carry out the tests on the company premises.

The SARS-COVID-19 Occupational Health and Safety Regulation remains in force and is also to be extended until 19 March 2022. The obligation for employers to offer COVID-tests to employees free of charge at least twice a week will continue to exist.

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