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3G - Access to operation and working place

  • Germany
  • Employment law

12-11-2021

The Bavarian Corona traffic light is on red, which is why, as of November 9, 2021, access to operations is generally subject to compliance with the "3G regulation". Below you will find brief assessments of clarified and unclarified issues:

1. Are industrial companies affected by the 3G regulation?

Yes, the regulation on 3G in the workplace will apply from November 9, 2021 in all companies in Bavaria with more than ten employees (incl. owners). Businesses in the retail and public transport sectors are excluded. The regulation is limited until November 24, 2021.

2. What does this mean for the employees and the employers?

For all employees who may have contact with other persons (customers, other employees or other persons) during their working hours, the employer must require proof of 3G for access to enclosed areas of the company. Employees must prove to the employer that they have been vaccinated, recovered or tested negative. A Corona rapid test is sufficient. This can also be done on-site at the employer's premises under the supervision of the employer. It is unclear whether temporary workers are covered.

3. How often do the 3G regulations need to be reviewed?

Vaccinated and convalescent workers need only be checked once for the duration of their status. Based on the wording of the regulations, other employees only have to provide proof of testing twice a week. It is unclear when the first test must occur. The wording allows some flexibility as to the days of testing per week. Even if one denies the employer's right to issue instructions with regard to the determination of the specific test days, it is urgently recommended for organizational reasons alone that the test days be determined or controlled by the employer. 

4. Who controls 3G at the works place?

Employers are obliged to check 3G evidence when accessing closed rooms in the operation area. It is not regulated whether and how access controls of internal and external delegations are permissible.

It is up to the employer to decide how and where to organize the 3G verification during access.

5. Does this now mean a right to ask about vaccination status?

A right to information on the vaccination status is not expressly regulated. The employer can only demand proof of compliance with the 3G regulation. Since he only has to demand proof of testing several times from the unvaccinated and the unrecovered, the employer must make a de facto distinction.

6. What happens to 3G rejecters?

Access to the operation and workplace can be denied. Likewise, the entitlement to remuneration - in accordance with the principle of no work, no pay - is excluded. According to this assessment, there are no claims to mobile working, home office, vacation or compensatory time off. Other arrangements can only result from specific company or employment contract agreements. It is advisable to have a clear policy on how to deal with 3G refusers.

7. May the 3G criterion be filed and documented?

At least in Bavaria, § 17 p. 2 no. 5 in conjunction with § 3 p. 2 of the Fourteenth Bavarian Infection Protection Measures Ordinance stipulates that an own test, i.e. a test carried out by or in the presence of the employer, must be kept for 14 days. In all other respects there is no clarity. It is conceivable that the employer is entitled to store the compliance with the 3G proofs per employee, date and time for the proof towards regulatory authorities. Declarations of consent under data protection law designed for the specific situation could be helpful. Deletion obligations must be observed when these access barriers are dropped.

8. Does the works council have a right of co-determination in the "how" of 3G control?

Codetermination rights according to § 87 I No. 1, 6 and 7 BetrVG are conceivable. It is recommended to proactively involve the local works council.

9. Who pays for the tests?

This question has not been clarified. It is to be expected that these are expenses that the employer must pay or reimburse, unless he offers tests free of charge. It is also questionable whether the time spent on the testing process is working time that must be paid for.

10. Summary and future

The Bavarian state government announced an action guide for Bavarian companies, which is not yet available. The 3G regulations will apply from November 9, 2021, as long as the traffic light is red and so far limited until November 24, 2021. There is no nationwide regulation yet. However, the (future) government has announced its intention to introduce a nationwide 3G rule for the workplace. Companies and businesses in Bavaria are already working at full speed to ensure the organizationally and legally correct application of the Bavarian 3G regulation. To ensure that the working atmosphere is not damaged, a skilful and factual communication strategy towards employees regarding the verification checks and the handling of 3G would definitely be advisable. However, it is to be expected that unresolved labor law issues will come to a head as a result of the mandatory 3G regulation.