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On November 24, 2021, the new Infection Protection Act (IfSG) came into force. Employers will again be required to offer work from home (home office) for office workplaces or comparable activities (Section 28b (4) IfSG) and to apply the 3G (Vaccinated, Recovered, Tested) regulation in the workplace (Section 28b (1) IfSG). Access to the workplace is now only permitted to the employer and employees if they are vaccinated, recovered or tested persons and carry a vaccination, a recovery or a test certificate with them, keep it available for inspection or have deposited it with the employer. The regulations are effective for the time being until March 19, 2022, and may be extended.
The main implications for employers and employees are as follows:
What applies to employers from now on?
The law obliges employers to allow employees to work from home for office workplaces or comparable activities. This obligation applies to all employers, regardless of their size.
Are there any exceptions?
Employers can only escape the obligation if there are compelling operational reasons against working in a home office. This is the case if, for example, the IT infrastructure is not sufficient. It should be noted, however, that the German Federal Ministry of Labor and Social Affairs (BMAS) had held with regard to the home office obligation, which already applied until June 30, 2021, that “technical or organizational reasons, such as the unavailability of required IT equipment, necessary changes in work organization or insufficient qualification of the employees concerned” can generally only be used as an argument by the employer on a temporary basis until such reason has been eliminated. In the meantime, however, the BMAS has probably abandoned this view (cf. https://www.bmas.de/DE/Corona/Fragen-und-Antworten/Fragen-und-Antworten-ASVO/faq-corona-asvo.html#doc89168596-e024-487b-980f-e8d076006499bodyText4 under 1.2.2.). Compelling operational reasons may also exist, for example, if operational processes would otherwise be significantly restricted or could not be maintained at all. Special requirements of company data protection and the protection of company secrets may also speak against the performance of activities in the home office. It is likely to be difficult for employees to verify whether there are actually compelling operational reasons for working from home. However, they will still not be able to take legal action to enforce work at the home office.
What applies to employees?
Employees are obliged to accept the offer to work from home. Employees may only refuse this offer if it is not possible for them to work from home. Reasons for this include insufficient space, interference from small children, etc.
In practice, employers will find it difficult to verify whether reasons given by employees for not being able to work from home actually exist. The IfSG only states succinctly that employees must accept this offer if there are no reasons to the contrary. The law does not stipulate any obligation to provide evidence of these reasons. In practice, therefore, employers will probably only be able to ask the employees concerned and demand a more detailed explanation of the reasons given. In case of doubt, access to the workplace should be granted according to the 3G regulation in order to avoid unnecessary disputes.
Do works councils have co-determination rights?
The IfSG does not regulate this. Since the obligation to allow home office work is prescribed by law, there is no right of co-determination in this respect.
However, with regard to the design of home office activities, the works council has co-determination rights in accordance with Section 87 (1) No. 14 of the newly created Works Council Modernization Act (Betriebsrätemodernisierungsgesetz – BetrVG) (design of mobile work performed using information and communication technology) and Section 87 (1) No. 7 BetrVG (regulations on the prevention of occupational accidents and diseases and on health protection within the framework of statutory provisions or accident prevention regulations).
Access to the workplace – 3G
What applies with immediate effect?
Effective immediately, access to workplaces where “physical contact between employees may occur” is only available to employers and employees if the individual has been vaccinated against, recovered from, or tested for Covid-19 and carries or has available for inspection proof of vaccination, proof of recovery, or proof of testing (“3G Rule”). Employees may also leave such proof with their employer. Since “physical contact between employees” can already occur if an encounter with other persons cannot be ruled out in the workplace, even if there is no direct physical contact, the 3G rule applies in almost all workplaces. In case of doubt, the regulation should be applied to avoid disadvantages (fines).
The test result of a rapid antigen test must not be older than 24 hours. A PCR test must not be older than 48 hours. Entering the company premises without proof is only permitted in order to take advantage of a test offer from the employer before starting work or to be vaccinated at the workplace.
Self-tests performed by the employee at home are not sufficient because they cannot provide proof that they are not older than 24 hours. A self-test conducted under the supervision of the employer would be sufficient. However, employees are not entitled to require employers to provide supervision for rapid tests.
What are the obligations of employers?
Employers have the following obligations:
- They must control access to the office on a daily basis: They must ensure that only persons who carry or have available for inspection, or have deposited with the employer, proof of vaccination, recovery, or testing enter company premises;
- They must regularly check the validity of the respective proofs: For vaccination and convalescent proofs, it is sufficient for the employer to check them once initially and then again each time on the expiration date;
- They must regularly document these checks: The employer must regularly document the checking of the respective proof, the checking of the validity of the respective proof and the expiration date of the respective proof, e.g. the vaccination certificate.
It should be noted that the IfSG does not define who is considered vaccinated, recovered or tested. To be on the safe side, employers should therefore refer to the definitions in the Ordinance Governing Relief and Exemptions from Protective Measures to Prevent the Spread of COVID-19 (COVID-19 Protective Measures Exemption Ordinance – SchAusnahmV). Under this regulation, a vaccinated, recovered, or tested person is only one who is asymptomatic and in possession of a vaccination, recovery, or test certificate issued to him or her. To be on the safe side, employers should therefore check and document not only whether an individual has appropriate evidence, but also whether the individual is asymptomatic, i.e., there are currently no typical symptoms or other evidence of SARS-CoV-2 coronavirus infection (shortness of breath, new-onset cough, fever, and loss of smell or taste). This can be done, for example, by requesting confirmation before entering the workplace (such as an e-mail to a person assigned to check).
In addition, employers must inform their employees about the company’s access regulations. The IfSG stipulates that this must be done “barrier-free” if necessary. It is advisable to provide this information in such a way that it actually reaches every employee, for example by using a communication channel commonly used in the company (e.g. e-mail to all and/or a posting on the employer’s intranet site).
Employers must also continue to offer two Covid 19 antigen tests per week, although these tests conducted at the employer’s site are not sufficient 3G evidence. Note that employees are not required to accept and perform these tests as well.
Finally, employers must retain evidence of test procurement and any third-party agreements for employee testing until March 19, 2022.
Do special data protection regulations apply?
The IfSG stipulates that data on vaccinated, recovered or tested status may be processed by employers for the purpose of fulfilling monitoring and documentation obligations (also in order to better adapt company hygiene concepts), but may not be stored in the long term. They must be deleted at the end of the sixth month following their collection. The data may also be processed to adapt the employer’s hygiene concept.
It is advisable to inform the employees in accordance with the data protection regulations, for example, as follows (the information is to be adapted to the respective concerns of the respective company and is only of an exemplary nature):
“… In terms of data protection law, for the sake of good order, we inform you as follows:
- As part of the checks, we will process the following data:
o The first and last name;
o Whether 2G status is met by providing either a) proof of vaccination (vaccination certificate showing that the 2nd vaccination was more than 14 days ago) or b) proof of recovery (positive PCR test at least 28 days ago and at the latest six months ago);
o If 2G status is not met: whether a negative Covid 19 test (current rapid test (no more than 24 hours old) or PCR test (no more than 48 hours old)) has been submitted;
o When the vaccination certificate, recovery certificate or test certificate was reviewed by us. If the “recovered” characteristic is met, we will record the expiration date of the 2G status; and
o Whether you are asymptomatic, meaning you do not currently have typical symptoms or other evidence of SARS-CoV-2 coronavirus infection (shortness of breath, new-onset cough, fever, and loss of smell or taste).
- This data is processed for the purpose of complying with the obligations imposed on employers under Section 28b of the Vaccination Protection Act (IfSG).
- The processing is necessary for compliance with a legal obligation to which the employer is subject (Art. 6 (1)(c) GDPR in conjunction with § 28b (3) and (1) IfSG ) and, with regard to sensitive health data, for reasons of public interest in the field of public health, on the basis of Art. 9 (2) (i) GDPR in conjunction with § 28b (3) and (1) IfSG.
The interests of employees must be taken into account when processing data. Therefore, employers should identify responsible parties who will conduct the checks and who will be bound by the confidentiality of the data. Sending the test certificates by e-mail is not possible for data protection reasons.
What happens to employees who do not provide proof of vaccination or recovery or a negative test?
Workers who do not provide proof of vaccination or recovery or a negative test may face sanctions. The employer may suspend the employee in question without pay. Since such behavior also violates an obligation arising from the employment relationship, the employer may issue a warning and may also terminate the employment relationship in the event of a repetition. The presentation of a falsified vaccination, recovery or test result is a serious breach of duty and may lead to termination of the employment relationship without notice.
Do works councils have co-determination rights?
The works council has no right of co-determination with regard to 3G controls in the company, as these are state requirements that are regulated in detail and leave the employer no room for maneuver.
If an employer or employee violates the obligations imposed on him by law (providing proof of vaccination, recovery or testing, checking and/or documenting the relevant proof), fines of up to 25,000.00 euros may be imposed in each case.