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New mandatory tests for holiday returnees - answers to key questions

16 July 2021

In the German state North Rhine-Westphalia, compulsory testing for Covid-19 after longer absences due to holidays is compulsory since 10 July 2021 to re-start working. For the first time, employees are now required to get tested in order to be able to take up their work. A similar provision has been introduced in Saxony, in addition to a general testing obligation for employees with customer contact. It is possible that other federal states will follow soon.

Below, we provide answers to the most important questions regarding the new provision in order to enable a legally secure application for companies.

Who has to be tested?

Employees who have been absent from work for at least five consecutive working days after 1 July 2021 due to holidays and comparable leaves of absence must submit a negative Corona test to the employer on the first working day that follows such a leave. If the employee starts working from home, the obligation applies to the first day on which the work takes place at the company (or at other locations outside the employee's home). Comparable leaves of absence are, for example, non-working days of part-time employees if they only take one or two days of annual leave. By contrast, this does not cover incapacity to work due to illness.

An exception only applies to both fully vaccinated and recovered persons, who must prove this by means of corresponding (digital) certificates. The employer may check vaccination certificates, for example, by using the "CovPass Check App" by the Robert Koch Institute to ensure their accuracy. 

What kind of test is required?

According to the applicable provisions, employees must provide proof of a negative test in the form of an official (so called) citizen test ("Bürgertestung") or facility test in accordance with Sec. 3 and 5 et seq. of the Corona Test and Quarantine Regulation (CoronaTest-und-Quarantäneverordnung). Alternatively, a documented supervised test can be carried out within the framework of employee testing according to Sec. 4 of the Corona Test and Quarantine Regulation. Employers can carry out such tests with their own qualified or trained personnel or commission them at their own expense from testing facilities or testing centres that also carry out citizen testing. However, they are not obliged to do so. Nevertheless, the submission of a simple self-administered test without supervision is not sufficient to fulfil the testing obligation for holiday returnees. Similarly, it is not sufficient to supervise a self-administered test and check the result unless the supervisor has the necessary expertise. This can be acquired at appropriate training courses.

Is the time spent on the test paid working time?

While the interruption of work in the context of employee testing is generally to be remunerated, it is unclear whether this also applies to the use of citizen tests outside the company. The fact that there is a clear link to the employment relationship and that testing also is in the interest of the employer, who has to check the results, seems to support an obligation to pay remuneration. According to the state government of North Rhine-Westphalia, however, the test can be carried out within 48 hours before the first day of work. The employee is free to schedule the test in this period. The fact that the employer has no influence over the employee's planning argues against an obligation to remunerate the time spent on a citizen test. A definitive resolution of this issue is still pending.   

Which measures do employers have to take now?

According to the above, employers are required to check whether the conditions specified by the regulation are met after the end of the employee's leave when he or she resumes work. It must therefore be checked whether the employees have tested negative, have been vaccinated or are recovered. If this is not ensured, the regulatory authorities may impose severe fines. Though it is only explicitly regulated that the examination has to be done on the first working day, it is recommended in any case to do it before the start of work.

The establishment of a system of controls is therefore indispensable. The regulation does not specify how this should look. In concrete terms, such a control system can be set up parallel to the holiday schedule. Employers should not only gain an overview of the current holiday situation in the company and check the employees on their return, but should also point out the new obligation to test on return as a precaution - if possible before the start of the holiday. This ensures that employees know what to do so that the presentation of the test (or proof of vaccination or vaccination) on the first working day after the holiday goes smoothly. This can be done by sending the test (or proof of vaccination or recovery) in advance by e-mail to a responsible person or by checking it in person when the employee returns to work.

The regulation itself does not explicitly stipulate that employers must document this. At the same time, the employer is required to check the test results or the vaccination certificate, which must be proven to the authorities in the event of an inspection. If the employer wants to avoid the risk of sanctions, it is obvious that the person responsible for this should document that and when the check was carried out and on what basis (vaccinated, recovered or tested) the employee was allowed to start work. At the same time, the requirements of employee data protection have to be observed, which are particularly strict in the case of health data. In order to avoid data protection risks, documenting only the performance of the check, but not the test result or vaccination certificate itself, is preferable. We do not recommend recording the vaccination status for any other use.

What are the consequences of not complying with the obligations?

Employers face a fine of up to 25,000 euros in the event of non-compliance if they do not ensure that the test certificates are checked or that tests are carried out. The same may also apply if the control is not carried out properly, e.g. if vaccination certificates are not checked. In this respect, we recommend a critical examination, at least in suspicious cases.

Employees who refuse to take a test or fail to submit it to their employer are also committing an administrative offence that can be reported to the authorities. In the event of a persistent breach of duty by employees, there may be consequences under labour law. This applies in particular if the breach of duty is associated with a health risk to third parties. The employer cannot force the employee to submit the test. However, the employer can of course point out the consequences under labour law if the test is not submitted. Depending on the individual case, these may amount to unpaid leave of absence or even dismissal without notice.

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.

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