The number of coronavirus infections in Germany has recently risen dramatically, mainly due to the highly contagious delta variant. In addition, the vaccination rate among the population is still insufficient. Following controversial discussions, the Bundestag and Bundesrat passed an amendment to the Infection Protection Act on November 18 and 19. This came into force on November 24, 2021, and stricter rules for working life now apply nationwide – initially for a limited period until March 19, 2022. This article highlights the key points of the amendment to the law on 3G regulation in the workplace.
Previous legal situation
There was previously no clear legal basis for the 3G regulation in the workplace. From a legal perspective, it was unclear whether employers could possibly already order employees to only enter their workplace in compliance with the 3G rule on the basis of their right to issue instructions or their authority to issue instructions under Section 106 of the German Industrial Code. The data protection component of the employer’s request for a negative coronavirus test certificate or the status of a vaccinated or recovered person was also legally controversial. The predominant legal opinion was that the acceptance of a test offer was generally considered to be part of private life and therefore not subject to the employer’s right to issue instructions. And if no coronavirus test could be ordered, this would also apply to the question of vaccination, recovery or negative tests. According to the provisions of the European General Data Protection Regulation and the Federal Data Protection Act, this data is particularly worthy of protection as health data and is therefore not subject to queries by the employer – apart from the legal exceptions in the medical and so-called vulnerable professions. In summary, under the previous legal situation, querying the 3G status of their employees would have entailed a not inconsiderable legal risk for employers.
The amendment of the Infection Protection Act
This risk was abruptly eliminated by the newly introduced Section 28b of the Infection Act. This is because the legislator has not only created a legal basis for the 3G rule in the workplace, but has also obliged employers and employees – regardless of the size of the company or number of employees – to carry proof of vaccination and recovery or a current certificate of a negative corona test when entering the workplace. An antigen test may only be a maximum of 24 hours old. If it is a PCR, PoC-PCR or comparable test using nucleic acid detection, it may be up to 48 hours old. If the employer offers the tests in the company itself, the employee may first enter the company in order to take the test before starting work. However, the tests must be carried out and certified by an authorized third party or carried out and documented in the company under supervision. The 3G verification requirement also applies to employees who cannot be vaccinated for medical reasons.
Daily check by the employer
According to the legislator, the employer is responsible for checking the 3G certificates before entering the workplace. They can also delegate the check to suitable employees or third parties, taking into account the requirements for employee data protection. The focus of the checks should be on the validity of the test certificates. For those who have not been vaccinated or have not recovered, a daily check of their negative test status is a prerequisite for access to the workplace. However, if the employer has checked the proof of recovery or vaccination once and documented this check, employees with valid proof of vaccination or recovery can subsequently be exempted from daily access checks. Evidence can also be deposited with the employer by employees. This deposit is voluntary. In addition, employees and employers themselves must have the vaccination/convalescence/test certificate ready for inspections by the competent authority. The proofs can be in German, English, French, Italian or Spanish as well as in written (e.g. vaccination certificate) or digital form.
Data protection requirements
Section 28 b of the Infection Protection Act has now also created an explicit legal basis for data processing. However, the employer’s monitoring obligations and the right to process the health data received do not oblige employees to provide the employer with comprehensive information about their own vaccination or recovery status. Employees who do not wish to answer the question about their vaccination status are not in breach of their contractual obligations. However, they must then allow themselves to be treated as “unvaccinated” and provide a daily test. The employer may now also – and this is explicitly stated in the law – store and process personal data on vaccination status. And for six months. In addition, the data may also be used, if necessary, to adapt the company hygiene concept on the basis of the risk assessment in accordance with Section 5 of the Occupational Health and Safety Act. Employers must always observe the principle of data minimization when storing personal data of their employees. It should therefore be sufficient to “tick off” the first and last names of the employees on a list on the respective inspection day if the respective proof has been provided by the employee. In the case of vaccinated persons, the existence of valid proof only needs to be recorded and documented once. The same applies in principle to recovered persons. However, it should also be noted that if the recovered status expires before March 19, 2022 (the law is limited until this date), the respective persons must either submit proof of vaccination once or proof of testing every working day. It is therefore advisable to also document the expiration date of certificates of recovery. The data must be deleted no later than six months after collection.
Test costs
Employees are responsible for ensuring that they can present valid 3G certificates. Employees and employers can make use of the free citizen tests or test offers in the company for this purpose, which employers are obliged to provide under the SARS-CoV-2 Occupational Health and Safety Ordinance or other legal standards. However, testing does not count as paid working time. This is because it must be carried out before the employee starts work and is primarily in the employee’s own interest so as not to violate a prohibition provision (subject to a fine). The situation is different if the employer is voluntarily prepared to remunerate the testing time.
Consequences under labor law
Employees who are unable or unwilling to provide proof of 3G and as a result are not (allowed to) perform their work must generally expect sanctions under employment law. Termination of employment would be permissible as a last resort in the event of repeated refusal. However, the principle of proportionality of employment contract measures will usually require a warning first. If the employee does not wish to disclose their 3G status or cannot prove it and therefore does not perform the work, they should generally not be entitled to any remuneration. This is because the employee himself is responsible for the fact that he is no longer allowed to enter the company to start work. In most cases, this exempts the employer from paying wages.
Sanctions
The Infection Protection Act provides for fines of up to EUR 25,000 for both employers and employees for violations of the obligation to check and carry 3G certificates. However, there is not (yet) a corresponding catalog of fines for individual, specific violations.
Conclusion
After the “epidemic situation of national importance” determined by the German Bundestag was not extended on November 25, 2021, the legislator decided on a legal basis for further precautions to protect against the coronavirus by amending the Infection Protection Act. In addition to 3G in the workplace and on public transport, the general obligation to work from home was (re)introduced. It is to be hoped that these measures will take effect in order to increase the vaccination rate and thus contain the coronavirus pandemic. However, if this does not succeed, the only last resort would probably be a general compulsory vaccination against the coronavirus. Many voices in politics and the media are already speaking out in favor of this. Although mandatory vaccination would be possible from a legal perspective, it would be subject to high constitutional hurdles due to the interference with the physical integrity of those affected. But even a few months ago, few would have believed in the introduction of the 3G rule in the workplace. Unfortunately, the persistence of the coronavirus is forcing us to take drastic measures.
This article also appears in issue 12 of the magazine “Sicherheitsingenieur“.
The author and your usual contacts will be happy to answer any questions you may have!
Matthias Klagge, LL.M.
klagge@tigges.legal
+49 211 8687 134