On November 18, 2021, Germany’s lower house of parliament, the Bundestag, approved a renewed amendment to the Infection Protection Act that has important implications for employers and employees. The following day, the Bundesrat, Germany’s upper house of parliament, gave its approval to the legislation. The amendment and related measures will come into force on November 24, 2021.
The so-called 3G workplace rule (i.e., only vaccinated, recovered, or tested persons [Geimpfte, Genesene, Getestete] are granted access to the workplace), which has already been implemented in Bavaria, will apply nationwide. Under the 3G rule, employees will be allowed to enter their workplaces only upon the presentation of a certificate proving a vaccination against or recovery from COVID-19, or a current negative test certificate. This requirement applies to persons for whom direct contact with others—such as colleagues or customers—is possible. Exceptions will apply only for brief outdoor contacts.
The amendment requires, for persons who neither present a certificate proving vaccination against or recovery from COVID-19, tests to be performed daily by rapid test (maximum 24 hours old) or PCR test (maximum 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 will not be sufficient. Rather, employees must present an appropriate certificate. For that purpose, employees can also make use of the so-called free “citizen test.” The obligation for employers to offer free tests twice per week (§ 4 SARS-CoV-2 Occupational Health and Safety Regulation) will continue to apply.
Stricter rules also apply in particularly vulnerable care and health facilities. There, vaccinated and convalescent persons will also be subject to regular testing. The requirements also apply to visitors, whereby parcel delivery persons and other workers who are also explicitly included. The facilities are required to offer appropriate testing facilities.
Employers will be granted a right of access to the processing of personal data relating to vaccination, recovery, or test status. Inadequate control or documentation will constitute an administrative offense under the amended law, and employers in violation of the law may be subject to proceedings for a fine. Collected personal health data must be deleted after six months.
In the future, 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. Failure to report this information may result in fines.
It is not yet clear what the consequences will be if an employee does not comply with the obligation to provide a certificate of vaccination, recovery, or testing and therefore cannot access the premises. The violation of the legal obligation certainly constitutes a breach of duty, for which an employer may warn an employee about the potential consequences. Persistent or repeated refusal to comply with this legal obligation could be grounds for dismissal. Moreover, the principle of “no work, no pay” is likely to apply. This principle applies in any case when an employee cannot perform work remotely in a home office.
The third major change is the reintroduction of a home office obligation. According to the legislation, employers will 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, will be required 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 cite possible disturbances by third parties or spatial confinement as reasons for not doing so. The wording of the legislation corresponds to the home office obligation that existed in the first half of 2021.
The measures are scheduled to expire on March 19, 2022, with the possibility of a three-month extension by the Bundestag.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
