In Germany the “Epidemic Situation of National Significance” ends on November 25, 2021. As a result, the German legislature has amended several COVID-19 related laws, such as the German Infection Protection Act (Infektionsschutzgesetz – IfSG), in order to continue certain protective measures. The amended regulations (BT-Drs. 20/15 and BT-Drs. 20/78) aim to provide for a flexible approach to providing a safe and hygienic workplace depending on different regional or sector-specific infection metrics as well as the vaccination status of the workforce. Employers will have to comply with the regulations at least until March 19, 2022.
At the workplace, the so-called „3G rule“ shall apply irrespective of the activity carried out. Pursuant to Sec. 28b (1) IfSG employees will only be allowed to enter the workplace where they encounter other people, even if there is no direct physical contact, if they have been vaccinated (geimpft), tested (getestet) or recovered from COVID-19 (genesen). Vaccinated employees must present proof of complete vaccination protection such as the yellow WHO vaccination certificate or the EU Digital COVID certificate. To obtain recovered status, employees require proof of a positive PCR test conducted at least 28 days ago. The proof of recovery is valid for a maximum of six months. After that period, a single vaccination is required to keep recovered status. Employees who are not vaccinated against COVID-19 or who are not of a recovered status must be tested daily for COVID-19. Corresponding employee data on the vaccination, test and recovered status may be processed in accordance with Sec. 28b (3) IfSG and must be deleted no later than six months after collection. Employers are generally obliged to verify the 3G-status daily. However, it is sufficient that employers check the recovery or vaccination status once and document this check. Employees with valid proof of vaccination or recovery may then be exempted from the daily access checks. However, they must have their proof accessible in the event of an inspection by the local authorities. Furthermore, it is an offence for an employee to enter a workplace without a valid certificate and employees can be liable under Sec. 73 (1a) no. 11b IfSG, and fined up to € 25,000.
As an employee’s vaccination status is subject to special protection pursuant to the GDPR, employers are generally not permitted to use or process this sensitive data. An exception applies in connection with Sec. 56 (1) IfSG for wage compensation claims if an employee has to be quarantined or is subject to a ban on activities due to an official order. An employee cannot bring such a claim if they did not take up a vaccination which was required by law or publicly recommended in the area where the person reside., When processing the “vaccination status” employers should consider in particular the recommendations of the German Data Protection Conference dated October 19, 2021 (German version only).
Obligation to work from home
Furthermore, the new Sec. 28b (4) IfSG (re-)introduces the obligation on the employer to offer working from home as well as the obligation on employees to accept this offer. The wording of the provision corresponds exactly to the former Section 28b (7) IfSG. Employees must accept the offer of working from home but may object on compelling grounds. In practice, it will be sufficient if the employee simply states that he or she cannot work from home, whether for reasons of space or because his or her partner may already be working there.
Occupational health and safety
The existing regulations of the “SARS-CoV-2 Occupational Health and Safety Ordinance” (Corona-ArbSchV) (the Ordinance) shall also apply for another four months. In particular, the employer’s obligation to implement and regularly update their risk assessment with regard to infection control, the obligation to provide COVID-19 test at least twice a week, compliance with minimum social distancing of 1.5m and the wearing of mouth-nose protection masks remain. Special provisions regarding children’s sickness benefits according to Sec. 421d (3) sentence 1 German Social Code III (Drittes Sozialgesetzbuch – SGB III) are extended until December 31, 2022 in order to alleviate COVID-related difficulties around childcare.
Vaccination support obligation
In order to reduce the risk of infection at the workplace, companies should continue to help in increasing the proportion of vaccinated employees by allowing for vaccinations of employees during working hours. Information on the health risks posed by the SARS-CoV-2 virus and on the possibility of reducing these risks by means of vaccination must be given to employees in the context of occupational health and safety instructions. The willingness to get vaccinated shall further be promoted through in-house information campaigns.
Documentation obligations and penalties
Records documenting the testing offered by the employer must be kept as evidence to the authorities until March 19, 2022, whereby proof of an purchase order for the required quantities of tests is sufficient. Employers who do not comply may be fined up to € 25,000 according to Sec. 73 (1a) no. 11d IfSG. Furthermore, amendments to the German Penal Code (Strafgesetzbuch – StGB) provide for penalties to be imposed where, for example, incorrect vaccination documentation has been entered in blank vaccination passports or other people’s health certificates have been used.
The amendments will come into force on November 24, 2021 and remain in force until March 19, 2022 with an option to extend for a further three months.