(Last udate: 25 March)
Today, on 25 March 2020, the Bundestag adopted the amendments to the German Act on the Prevention and Control of Infectious Diseases [Infektionsschutzgesetz - IfSG] proposed by the Federal Ministry of Health [Bundesgesundheitsministerium- BMG] (hereinafter referred to as the "BMG"). In the event of an epidemic such as the current corona pandemic, the Federal Government will be temporarily granted additional powers. The German Act on the Protection of the Population in the Event of an Epidemic Situation of National Significance [Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite], introduced as a bill by the coalition parties on the basis of pre-drafted wording of the Federal Government, still has to pass through the Bundesrat. Below, we are providing you with an overview of the essential amendments to the German Act on the Prevention and Control of Infectious Diseases (hereinafter referred to as the “IfSG-E”).
1. The draft law a glance
The German Act on the Prevention and Control of Infectious Diseases will be amended to meet the considerable challenges of the corona crisis. In addition to a clarifying regulation on the responsibility of the Robert Koch Institute (RKI), the draft law mainly contains new powers with regard to the basic supply of medicines, remedies and medical aids as well as measures to strengthen human resources in the healthcare sector. In order to ensure the effectiveness of the measures, the decrees and statutory ordinances are partly subject to fines. The catalog of fines of § 73 IfSG will be adjusted accordingly and the legal protection is to be restricted in such a way that a legal challenge pursuant to § 5 (4) sentence 4 IfSG-E does not have suspensive effect.
In addition, parents who suffer a loss of earnings as a result of the closure of schools and daycare centers will receive compensation under certain conditions. Furthermore, a one-time obligation is being imposed on the BMG to inform the Bundestag by 31 March 2021 about its findings on the coronavirus in order to prepare the RKI for future crises. The amendments to the IfSG are accompanied by data protection adjustments to the German Act Implementing the International Health Regulations [Gesetz zur Durchführung der Internationalen Gesundheitsvorschriften - IGV-DG] and the German Social Code Book V [Sozialgesetzbuch V - SGB V] as well as a temporary reduction of bureaucracy in the German Building Code [Baugesetzbuch, BauGB]. Furthermore, the draft law provides for exemptions from building law, for example in order to be able to construct medical facilities at short notice.
2. Selected provisions of the IfSG-E in detail
Determination of an epidemic situation of national significance
Both the powers newly regulated in § 5 IfSG-E and the exemption in § 5a IfSG-E require the determination of an epidemic situation of national significance. The Bundestag determined such a situation today. As soon as the prerequisites cease to be met, the Bundestag must immediately revoke the determination and the measures justified therewith consequently lose their validity. Sufficient publicity is ensured through the obligation to publish the initial determination of the situation and the subsequent end of such a situation in the Federal Law Gazette [Bundesgesetzblatt, BGBl.].
Cooperation between the Federal Government and the federal states
The draft law contains clarifying provisions on the responsibility and cooperation of the various authorities in the fight against infections. First of all, the general scope of the RKI's tasks will be defined by law. In addition, according to § 5 (8) IfSG-E, the RKI is responsible for the coordination of the cooperation between the Federal Government, the federal states and the other parties involved as well as the exchange of information as soon as an epidemic situation of national significance has been determined. Moreover, in such an exceptional situation, the BMG, advised by the RKI, can make recommendations to simplify a nationally coordinated procedure (§ 5 (7) IfSG-E).
Determination and containment of the epidemic
In the event of an epidemic situation of national significance, the BMG is given additional powers to determine and, ideally, prevent the introduction of the infectious disease. For example, persons with an increased risk of infection, who for example come from high-risk areas, must, on demand, provide various personal details and undergo a medical examination (§ 5 (2) No. 1 IfSG-E). In addition, the BMG is authorized to impose a number of obligations on passenger transport companies and other similar companies under § 5 (2) no. 2 IfSG-E. For example, companies can on the one hand be prohibited from transporting people from certain countries to Germany, and on the other hand they can be ordered to transport sick people. In addition, companies may be required to collect certain data (personal identification data, passenger lists and seating plans) and to disclose them.
Ensuring the supply of medicines
Further powers of the BMG concern ensuring the supply of medicines, medical devices, laboratory diagnostics, medical aids as well as personal protective equipment and disinfectants (§ 5 (2) No. 4 IfSG-E). By statutory ordinance, the BMG can, in particular, permit exceptions to statutory regulations such as, among others, the German Medicinal Products Act [Arzneimittelgesetz - AMG], the German Narcotics Act [Betäubungsmittelgesetz - BtMG], the German Pharmacies Act [Apothekengesetz - ApoG] and other regulations of medicinal products law, or authorize the federal states to permit such exceptions. Other noteworthy instruments include a ban on the sale of medicinal products and pricing specifications. In addition, production facilities may be converted or even closed down and more extensive compensation schemes may be adopted in connection with these measures. As a further measure, § 5 (2) No. 5 IfSG-E allows a limitation of the effect of patents under § 13 (1) German Patent Act [Patentgesetz, PatG].
Maintenance of healthcare and nursing care
A number of possible measures are designed to ensure both healthcare and nursing care. For this purpose, the BMG can issue a statutory ordinance that allows healthcare institutions to deviate from existing legal requirements (§ 5 (2) No. 7 IfSG-E). Similarly, exemptions from regulations for care institutions may be permitted by statutory ordinance and their tasks may be partially restricted (§ 5 (2) No. 8 IfSG-E). The possibility of issuing a statutory ordinance on the basis of § 5 (2) No. 3 IfSG-E to declare permissible exceptions to infection protection regulations also has a similar goal. The exception in § 5a IfSG-E goes far beyond this. When an epidemic situation of national significance is determined, then in conjunction with this certain groups of professions (geriatric nurses, healthcare and nursing staff, etc.) are by law permitted to carry out curative work. The BMG can permit other persons to carry out curative work by statutory ordinance.
New compensation claim for parents
The draft law is responding to the problems of parents with regard to childcare following the closure of schools and other care facilities by introducing a new compensation claim in § 56 (1)a sentence 1 IfSG-E. Accordingly, parents and guardians are entitled to compensation if they have no reasonable alternative childcare option to personally caring for their own children as a result of the closure and consequently suffer a loss of earnings. It is envisaged that the employer will disburse the payment and then apply for a refund to the competent authority. Depending on how jurisdiction is regulated in the federal states, this can be the health authorities or, as in North Rhine-Westphalia, the regional associations.
A loss of earnings does not exist if there are other possibilities of being absent from work temporarily with pay, e.g. by reducing credits on working time accounts. Claims to short-time work compensation also take precedence over compensation claims.
The compensation is for a limited term of six weeks and in amount to 67% of the loss of earnings of the working parent or guardian, or to a maximum amount of EUR 2,016 per month. The compensation claim is only of temporary duration, as it is revoked at the end of the year.
We would be pleased to advise you further.