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Access to the company with nationwide 3G regulation

  • Germany
  • Employment law

22-11-2021

The current Federal Infection Protection Act (IfSG - specifically § 28bIfSG ) has been amended and leads to nationwide 3G regulations in the workplace. The amendment comes into force one day after promulgation in the Federal Law Gazette. Current planning on 24.11.2021 - conceivable but also earlier.

This 3G scheme is limited until 19 March 2022.

The following is a first update:

1. Who is affected?

Nationwide, all employers and their employees in workplaces according to § 2 I and II of the Workplace Ordinance are affected.

Physical contact with each other or third parties must not be excluded at these workplaces.

Note: This also includes outdoor places and the canteen or home office and means of transport are excluded. It remains unclear how to deal with customers, employees of outside companies or temporary workers.

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

The principle of the 3G regulation: The employee is the addressee of compliance with and proof of the 3G regulation. The employer is the addressee of the obligation to check and document the 3G regulation of his employees before or when they enter the workplace.

3G proof means tested, vaccinated or recovered. The requirements result from the "Covid19 Exemption Regulation”.

3. What role does working from home play?

The legislator refers back to the duty to offer from the 1st half of 2021 (see § 28b para. 7 IfSG a.F.). Employers are obliged to offer employees the opportunity to work from home. He is only exempt from this obligation for compelling operational reasons. The requirements here are high. If the employer wants to deviate from this obligation, a robust examination and assessment must be documented as a matter of urgency.

The employee can, but does not have to, work at home. He can refuse to do so and is then again subject to the 3G regulations for access to the workplace.

Deviating results, such as a right of the employer to issue instructions to work from home, can result from employment contracts, collective agreements or, if applicable, company agreements.

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

The employer must ensure that the 3G status is checked for each working day. For vaccinated and recovered persons, this can be done once and documented. The proof of testing for the unvaccinated and the unwell must be checked daily.

5. By whom and how is 3G controlled at the workplace?

The employer may carry out 3G control by its own staff or delegate this to external service providers.

The 3G detection is checked and not whether employees have symptoms.

However, the employer does not have to provide staff to supervise the tests. The employer has no obligation to organise test centres. However, if the employer offers on-site testing facilities and these are intended to provide proof of testing, they are only valid if they are carried out under supervision.

The check must be carried out before entering the workplace, unless the entry is to obtain the test certificate or an offer of vaccination on the employer's premises.

6. What challenges does data protection pose?

The employer may query and process the name, the 3G status and the duration of the status for the purpose of verification. In addition, deletion periods must be observed and access to this data by unauthorised persons must be prevented. The 3G certificate must only be presented by the employee and not handed over.

7. What happens to 3G refusers?

Access to the company and workplace can be denied. Likewise, the claim to payment of wages - according to the principle of no work, no money - is excluded. According to this assessment, there are still no claims to mobile working, home office, leave or compensatory time off. However, the employer's obligation to offer work from home must be taken into account, unless there are compelling operational reasons to the contrary. If the employer has to offer working at home, the employee may under certain circumstances retain his or her entitlement to remuneration.

If sanctions such as warnings or dismissals are intended, a detailed case-by-case assessment is strongly recommended. This avoids considerable litigation and cost risks.

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

Participation rights according to § 87 I No. 1, 6 and 7 BetrVG are conceivable. It is recommended to proactively involve the local works council. Enforceable co-determination rights on the right to home office or supervised test centres of the employer should be rejected.

9. Who pays for the tests?

Employees are responsible for bearing the costs. Employees can take advantage of the currently free citizenship tests or voluntary offers by the employer. The employer's obligation to offer two free tests in accordance with the Occupational Health and Safety Ordinance remains in force.

We do not consider the time spent on the testing process to be working time that is subject to remuneration.

10. What is the "cost" of an infringement?

If the employer violates his control and documentation obligations, he must expect a fine of up to EUR 25,000.

11. Summary and outlook

The federal regulation on 3G now includes at least a nationally uniform line. This tightens up previous regulations of individual federal states - such as the Bavarian traffic light regulation. The amendments to the Infection Protection

Act supersede the regulations of the states, insofar as regulations can be found there. In addition, an opening clause is provided for the states, according to which the states can take more far-reaching measures under certain conditions. At present, it can be assumed that the Bavarian regulation will be replaced by the federal regulation as of 24 November 2021. The situation is different if the federal regulation enters into force before 24 November 2021.

Despite some clear rules on the right to ask for 3G as well as on the storage of 3G status or the bearing of costs, ambiguities remain, such as how to deal with the obligation to offer home office or how to deal with 3G refusers.