Employment Law16.04.2021 Newsletter

Corona Update Q2 2021: What employers should know about the planned new regulations

The Federal Minister of Labour, Hubertus Heil, presented the planned Second Ordinance amending the Corona Occupational Health and Safety Ordinance to the Federal Cabinet on 13 April 2021. This intends to extend the period of validity of the SARS-CoV-2 Occupational Health and Safety Ordinance up to and including 30 June 2021 and to introduce a testing offer that will be mandatory for employers.

The amendments to the SARS-CoV-2 Occupational Health and Safety Ordinance are expected to come into force in mid calendar-week 16 following publication in the German Federal Gazette [Bundesanzeiger].

This means that the following regulations that are already in force will continue to apply: a mandatory offer to work from home, the provision and use of medical masks, regulations on avoiding contact between people in the workplace, a reduction in the number of people using rooms, the division of employees working together into fixed, small working groups where possible, and specifications for company hygiene concepts.

The Second Ordinance amending the Corona Occupational Health and Safety Ordinance brings with it a crucial extension for employers:

  • Employers are obliged to provide their employees, unless they work exclusively in a home office, with a so-called self-test or rapid test at least once per calendar week. This also applies to employees who, for example, come into the office from the home office on only one working day.
  • If employees work in particularly hazardous areas, the employer must offer two corona tests. This includes the following employees:
  • employees who are housed by the employer in shared accommodation;
  • employees who work under climatic conditions in closed rooms which favour the transmission of the corona virus;
  • employees in companies providing personal services, where direct physical contact with other persons cannot be avoided;
  • employees who, due to the nature of their work, carry out activities involving contact with other persons, provided that such other persons are not required to wear mouth/nose protection; and
  • employees who come into frequently changing contact with other people due to the nature of their work.
  • The employer has to bear the costs of the testing.
  • Employees are under no obligation to take the tests.


Important! Employers must retain evidence of the procurement of the self/rapid tests or agreements with third parties on employee-testing for four weeks. The competent occupational health and safety authorities can enforce compliance with all the requirements of the Ordinance in individual cases by issuing official orders and can impose fines of up to EUR 30,000 for violations of their orders.


Planned amendment to the Infection Protection Act

The federal government passed an amendment to the German Infection Protection Act [Infektionsschutzgesetz, IfSG] on 13 April 2021. This amendment provides, among other things, for night-time curfews in areas with incidence rates of over 100. However, the law still has to pass through the Bundestag and Bundesrat.

If the amendment is adopted in its current form, then employers in particular should be aware of the following:

  • In cities or districts where the incidence rate is greater than 100 for three consecutive days:
  • a night-time curfew from 9 pm to 5 am, except for any work-related activities or medical emergencies;
  • the retail trade and catering trade are predominantly closed, canteens may remain open under certain circumstances;
  • recreational and cultural facilities are closed;
  • buses and trains run with half the number of passengers;
  • private meetings are fundamentally limited to one's own household and one other person including their children up to the age of 14.
  • In cities or districts where the incidence rate is greater than 200 for three consecutive days, schools and day-care facilities will be closed.
  • If the rate falls below 100 for more than five consecutive days, the measures automatically cease to apply.


Important! Currently, 351 districts in Germany have an incidence rate above 100 (status: 15 April 2021. If the working hours at your company threaten to fall within the curfew period, you should issue your employees with certificates in good time. Please contact us if you would like our assistance with their preparation and implementation.

Planned extension of entitlement to child sickness benefit

Another innovation in the draft of the Fourth Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance [Viertes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage] of 13 April 2021 presented by Federal Minister Spahn is the planned extension of the entitlement to child sickness benefits for those insured under the statutory health scheme.

If an employee with statutory health insurance is prevented from performing his or her work due to the need to care for a sick child, he or she generally receives, upon application, 10 days of child sickness benefit amounting to approximately 90% of his or her net salary.

This entitlement currently exists in exceptional cases even if the need for care arises due to a pandemic-related closure of the school or childcare facility. According to the draft bill, this entitlement is going to be extended further as follows:

  • In 2021, parents will now be able to claim 30 days of child sickness benefit per parent and child, with single parents being entitled to 60 days.
  • In case of several children, a maximum of 65 working days can be claimed per parent; single parents can claim a maximum of 130 days.

The prerequisites for this are:

  • Both the parent concerned and the child are members of the statutory health insurance scheme.
  • The child has not yet reached the age of twelve or is dependent on assistance due to a disability.
  • No other person living in the household can supervise the child.
  • The applicant suffers a loss of earnings as a result of the care obligation. According to the explanatory memorandum in the draft bill, the claim shall exist irrespective of whether the work owed cannot also fundamentally be performed in the home office.


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Isabel Hexel

Isabel Hexel

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 348
M +49 172 1476 657