After the German Bundestag passed the law on November 18, 2021, the German Bundesrat will now also give its approval on November 19, 2021, so it can be assumed that it will come into force from November 22, 2021 at the latest.
I. Distinction from the work from home obligation
In parallel with the introduction of the 3G rule at the workplace, a mandatory work from home option has now again been included in the law in Section 28b (4) IfSG. This applies "if there are no compelling operational reasons to the contrary".
The questions discussed below only arise if either work from home is not possible for compelling operational reasons or if the employee has not accepted the offer.
In particular with regard to possible consequences under labor law in the event of non-compliance with the 3G obligation by employees, it is imperative from the employer's point of view to have made an offer to work from home beforehand.
II. Scope of application
1. To whom the regulation applies?
The law explicitly does not differentiate according to the type or size of the company, so that all companies in Germany are covered. Only if "physical contact" both within the company and with third parties "can be ruled out" the provision does not apply (Section 28b (1) sentence 1 IfSG). Such a case is likely to be extremely rare in practice.
Furthermore, all employees and employers are addressed - this already shows that the regulation is very far-reaching and also applies to executive bodies (such as managing directors, board of directors, etc.).
2. Does the regulation also apply to employees in the home office?
Even if a corresponding clarification is missing, a 3G obligation cannot apply to employees working exclusively in the home office, even if contacts with third parties cannot be ruled out here.
The Federal Ministry of Labour and Social Affairs has also clarified this.
3. Does the regulation apply to employees without a fixed place of work?
The law does not contain any clear specifications in this regard either. However, the term "place of work" and the employer's obligation to carry out inspections indicate that this obligation only applies where the employer has access to the place of work. However, since this is a health protection regulation, it can be assumed that it will be interpreted quite broadly.
For example, it would seem appropriate to apply the monitoring obligations even when employees are working for customers, etc., if the employer can control this. The 3G proof could then be provided in digital form without any problems.
However, if the employee is completely free to work, the regulation is likely to be inapplicable.
4. Does the regulation also apply to temporary workers
There are no reasons not to apply the regulation to temporary workers. However, in our view, the regulation should be interpreted in such a way that the rights and obligations apply directly to the relationship between the temporary worker and the hirer, as only the latter can carry out the checks efficiently.
III. Rights and obligations of the employee
5. What are the obligations of the employee?
According to the legal conception, the employee may enter the workplace only if he is:
- vaccinated ("geimpft")
- recovered ("genesen")
- tested ("getestet")
(Section 28b (1) sentence 1 IfSG).
Furthermore, appropriate proof of vaccination, recovery or testing must be carried and kept available for inspection by the authorities (§ 28b para. 1 p. 1 IfSG a.E.). This proof must also be shown at the employer's request (Section 28b (3) sentence 2 IfSG).
6. What are the consequences of a breach of these obligations?
A distinction must be made between consequences under labor law and consequences under regulatory law.
Irrespective of the consequences under labor law, entering the workplace without providing the relevant evidence constitutes an administrative offense that can be punished with a fine of up to EUR 25,000 (Section 73 (1a) No. 11b and (2) IfSG).
Furthermore, consequences under labor law are conceivable, in particular non-payment of wages due to the impossibility of performing work, as well as dismissal for personal or behavioral reasons.
7. What are the specifics for the presentation of a certificate of vaccination or convalescence?
It is possible to deposit the certificate with the employer and to refer to it during inspections (§ 28b para. 1 p. 1 IfSG a.E.).
Furthermore, the general requirements for vaccination apply in accordance with the specifications of the Paul Ehrlich Institute, both with regard to the vaccines and the number of vaccine doses (cf. § 2 No. 3 COVID-19 Protective Measures Exemption Ordinance).
A proof of recovery is a proof of the existence of a previous infection with the coronavirus SARS-CoV-2 by means of a PCR test, which dates back at least 28 days and at most six months (cf. § 2 No. 5 COVID-19-Protective Measures Exemption Regulation).
8. What are the requirements for the proof of testing?
The law conclusively regulates the permitted forms of test evidence. The test must either
- by an approved body as a citizen test ("Bürgertest")
- by an approved body as a test paid by the employee
- as part of an in-company test by personnel who have the required training or knowledge and experience
(cf. § 2 No. 7 COVID-19 Protective Measures Exemption Ordinance).
Whether the test is a rapid antigen test or a PCR test is irrelevant.
Furthermore, the test - at the time of entering the workplace - may be no more than 24 hours old (cf. Section 2 No. 7 CO-VID-19 Protective Measures Exemption Ordinance), and in the case of PCR tests, no more than 48 hours old (Section 28b (1) Sentence 2 IfSG).
The test evidence must also be available in written or digital form.
9. Is a self-test performed by the employee sufficient as proof of testing?
A negative self-test does not fulfill the requirements to be met by proof of testing.
However, the law contains a special feature in Section 28b (1) sentence 3 no. 1 IfSG, the significance of which has not yet been conclusively clarified. It should be possible to enter the workplace even without proof of 3G in order to take advantage of "an offer of testing by the employer immediately before starting work".
In our view, this can only refer to the performance of in-house testing by appropriate personnel or to the performance of self-tests supervised by the employer. A self-test supervised by the employer immediately after entering the workplace is therefore also sufficient proof of testing, whereby the entire test procedure and the evaluation of the results must be supervised (and documented) without interruption.
However, the employer is still not obliged to do this, so that this regulation only applies if the employer voluntarily undertakes to carry out these tests (see also question 13 below).
10. Is the time spent for the tests considered as working time and are possible costs reimbursed?
The testing itself is not to be regarded as working time. Rather, this performance is primarily in the interest of the employee, as this is the only way in which he can establish the necessary conditions for the performance of his work. The law also seems to clarify this by referring to the performance of company tests "immediately BEFORE the start of work" (Section 28b (1) sentence 3 no. 1 IfSG).The same applies to the reimbursement of costs - here, too, the employee himself remains responsible for the performance of the test and thus also for the costs.
IV. Rights and obligations of the employer
11. Does the 3G regulation also apply to employers?
The law explicitly does not differentiate, so that also employers, as well as managing directors and bodies 3G have to observe it.
12. Is the employer obliged to offer company tests by his own staff?
There is still no such obligation.
However, employers are of course free to provide such tests on a large scale and to organize them themselves, provided that there are otherwise concerns that delays or restrictions may occur in the company. This becomes particularly relevant when large percentage of the workforce are unvaccinated. However, there is no obligation for unvaccinated and untested employees to take such tests if they can provide evidence of other tests.
13. Is the employer still obliged to offer free corona tests twice a week?
The obligation to offer at least two weekly tests for all employees who do not work exclusively in a home office remains unchanged. This continues to result from § 4 para. 1 of the SARS-CoV-2 occupational health and safety regulation. Likewise, the employer is still free to choose the form in which he offers the tests; it is therefore sufficient to offer antigen self-tests. Furthermore, this obligation to offer tests remains unchanged, regardless of the vaccination or convalescent status of the individual employee.
The employee is still not obliged to accept this test offer (mere test offer obligation).
In our view, nothing to the contrary results from the special provision of Section 28b (1) sentence 3 no. 1 IfSG, as this merely refers to the existing obligations of the SARS-CoV-2 Occupational Health and Safety Ordinance. In our view, the fact that employers are now obliged to offer tests under supervision that allow unvaccinated or untested persons to enter the company must be denied. In particular, this would otherwise lead to additional costs for the employer, which the Federal Ministry of Labour and Social Affairs has denied here.
14. In what form must the employer's checks take place?
The law explicitly states that compliance with the 3G obligation must be "monitored on a daily basis" (Section 28b (3) sentence 1 IfSG). Mere spot checks are therefore not sufficient.
Rather, appropriate measures must be taken to ensure that the workplace can only be entered if the relevant 3G requirements are met. As a result, this means that employers are obligated to immediately develop a system in which the 3G status is already queried before entering the workplace.
To this end, employers should also enter into negotiations with the works council in a timely manner.
15. To what extent may employees' personal data be processed?
The law now contains an explicit clarification in Section 28b (3) sentence 3 IfSG, according to which "personal data including data on vaccination, sero and test status" may be processed insofar as it is necessary to fulfill the obligations.
In this respect, it also appears to be permissible to permanently record that an employee has been vaccinated or has recovered (without differentiating) in order to then restrict the necessary checks to the unvaccinated and the unwell.
Nevertheless, deletion obligations must be observed - data may only be stored for as long as it is relevant for employment. At the latest when the 3G obligation expires, the corresponding data must be deleted.
In contrast, we believe that questions about the existence of a so-called booster vaccination are inadmissible under the current legal situation, since the legislator deliberately does not distinguish between those who have been vaccinated (completely) twice and those who have been vaccinated three times. It is possible, however, that this will change in the future and that the vaccinated status will only be available when a booster vaccination has been carried out.
16. What documentation requirements exist?
Employers are obliged to monitor compliance with the 3G regulation upon entry and to "document this regularly" (Section 28b (3) sentence 1 IfSG).
In this respect, it must be documented that it has been checked whether an employee has been vaccinated or has recovered (see question 14) and that the current test status of the other employees has been checked.
In our view, it is also permissible to keep the test certificate on file for this purpose. Alternatively, the type of test, the test date and time, and the test location can of course be documented manually. However, it seems much more efficient to document the test evidence itself.
17. What are the consequences of the employer's breach of duty
If the employer does not monitor compliance with the 3G regulations or does not monitor them properly, this constitutes an administrative offense (Section 73 (1a) No. 11d IfSG), which can be punished with a fine of up to EUR 25,000 (Section 73 (1a) No. 11b in conjunction with (2) IfSG).
In contrast, the law does not contain any legal consequences for the violation of the documentation obligation (see question 16). However, it is to be expected that in the case of proven violation of the documentation obligations, it will be difficult to prove that the monitoring obligations have been complied with.
V. Notes on practical implementation
Employers are now faced with the challenge of developing a 3G system in a very short time (possibly together with the works council) and monitoring it accordingly.
Nevertheless, the situation is likely to be eased, at least in certain areas, by the resumption of the obligation to offer work from home.
In any case, we recommend keeping the system as simple as possible and minimizing the data collected as much as possible.
- For this reason, we recommend that the proven vaccination or convalescence status is not recorded separately, but rather - since differentiation is not necessary - only the information that the employee has been vaccinated or has convalesced. Nevertheless, an expiration date should also be recorded for the convalescence record. The one-time recording - and control should also be documented.
- In this respect, the checks before entering the premises can be limited to those employees who are neither vaccinated nor recovered. The control of the test status can take place either physically (in the form of entrance controls); however, the obligatory obligation is also conceivable to send the proof pro-actively in advance by e-mail or in comparable form or to present this to a superior. The establishment of this system and the performance of the checks must be documented.
It is also important to communicate the changed legal situation to all employees and to emphasize that either - once - the vaccination or convalescent status or daily the test status must be proven in the intended form.
Furthermore, we would advise to continue the company test offers in the previous form. This also applies if only antigen self-tests have been provided so far (see questions 9 and 13). If in-company testing has been carried out to date, this can be maintained or - depending on requirements - expanded.
Whether in-company testing can dispense with the submission of an (external) text depends on how the employer organizes it. Only if the employer offers the in-company tests under supervision (immediately before the start of employment) or conducts them himself they can replace an external test. In our view, employers cannot be obliged to do this.
Ultimately, a balance must be struck between the additional expense of in-house testing and the associated benefits.
We hope to give you a good overview of the current developments with these explanations. If you have any questions on the above-mentioned topic and on concrete effects and questions of organisation, please do not hesitate to contact our colleagues in our offices in Berlin, Düsseldorf, Munich and Cologne by telephone or e-mail.