Employment Law18.03.2022 Newsletter

New corona rules at work from the first day of spring

Right in time for the calendar beginning of spring, companies are to be brought out of their corona hibernation and the majority of corona measures in the workplace dropped. This was finally decided by the German Bundestag and the Bundesrat today. With this, the bulk of the previously applicable provisions of Sec. 28b of the German Infection Protection Act [Infektionsschutzgesetz - IfSG] are being discontinued. Almost simultaneously, the Federal Ministry of Labour and Social Affairs has launched a new SARS-CoV-2 Occupational Safety and Health Ordinance [SARS-CoV-2-Arbeitsschutzverordnung - Corona-ArbSchV], which comes into effect on 20 March 2022. Alexandra Groth and Moritz Coché provide an overview of the occupational health and safety law framework conditions that will apply from 20 March 2022 and what options are still open to employers in the company beyond the current regulations:

Discontinuation of the home office obligation

With the amendment of Sec. 28b IfSG, the home office obligation was discontinued with the expiry of 19 March 2022. Employers may nevertheless continue to offer home office work beyond 19 March 2022, in agreement with the employees or in consultation with the works council (Sec. 87 (1) No. 14 German Shop Constitution Act [Betriebsverfassungsgesetz - BetrVG]).

The new Corona-ArbSchV, which comes into force on 20 March 2022, explicitly stipulates as part of the basic protection measures that employers must check whether employees are able to perform office work or comparable activities in their homes. Employers would thus be well advised to benevolently offer home office options beyond 19 March 2022, whilst taking into consideration the works council's right of co-determination.

No extension of the blanket “3G” obligation in the workplace

The discontinuation of the so-called company “3G” (vaccinated, convalesced, tested) regulation as of 20 March 2022 will bring a touch of normality for employers and employees. Workers will no longer have to carry proof of vaccination or convalescence or a current certificate of a negative corona test when entering their place of employment. This means that employers are no longer obliged to carry out and document corresponding checks. Thus, in principle, there is no longer any legal restriction on access to the company workplace. The employer can also no longer rely on the data that has already been checked and documented, as this has to be deleted by the end of 19 March 2022. Nevertheless, within the scope of their domiciliary rights, employers are fundamentally still entitled beyond 20 March 2022 to impose corresponding access restrictions to the company workplace.

The unilateral order to uphold the company 3G regulation is not unproblematic in its implementation, as it will no longer be permissible under data privacy aspects to checkthe vaccination and convalescent status once the basis for intervention Sec. 28b IfSG has been discontinued. In practical terms, this means that employers will no longer be able to record the vaccination and recovery status of their employees after 20 March 2022. Only employers in the nursing, care and health care sector are required to provide proof of immunity under the new Sec. 20a IfSG.

Since the obligation to provide proof in the nursing, care and health care sectors is linked to an actual activity in the facility, this affects all employees who work in such facilities, including, for example, cleaning staff or workmen. Please note, only the respective institution where the employee works may collect and process the proof of immunity, not the respective employer.

Far easier to implement across the board is the ordering of corona tests as a requirement for accessing the company, which is still possible for the employer on the basis of its domiciliary rights whilst observing any co-determination rights of the works council (Sec. 618 BGB, Sec. 3 (1) of the German Occupational Health and Safety Act [Arbeitsschutzgesetz - ArbSchG]; cf. also Offenbach Labour Court, judgement dated 3 February 2021, 4 Ga 1/21). Should employees unjustifiably refuse to comply with the due and proper orders of the employer, the employee risks not being able to perform his or her work and thus losing the right to wages.

Basic protective measures for infection control at the company

Irrespective of the employer ordering corona tests as a prerequisite for accessing the company, these tests will also remain one of the basic protection measures for controlling infection at the company after the new Corona-ArbSchV comes into force. In future, the new Corona-ArbSchV will require employers themselves to check, as part of the risk assessment to be carried out, whether and which of the measures listed below are necessary to ensure the safety and health of employees at work:

  1. Unless employees work exclusively in a home office, the employer must offer employees the option of weekly corona testing;
  2. Reduction of work-related personal contacts, especially by avoiding or reducing the simultaneous use of indoor spaces by multiple people;
  3. Provision of medical face masks.

The basic protective measures of company infection control still include the tried and tested AHA+L rules (social distancing, hygiene measures, face mask plus ventilation), in particular compliance with the minimum social distancing of 1.5 metres in the workplace (clause 2.7 SARS-CoV-2 Occupational Health and Safety Regulation). When taking measures, employers should take the regional infection situation into considerationas well as particular job-specific infection hazards.

The employer therefore still has to stipulate and implement a hygiene concept with the necessary protective measures for infection control at the company. In companies with a works council, this is still only possible with the involvement of the works council (Sec. 87 (1) No. 7 BetrVG).

Release from work to get vaccinated

Also beyond 19 March 2022, employers must continue to release employees from work in order to get vaccinated against the SARS-CoV-2 corona virus. The employer must continue to support company doctors in carrying out or organising protective vaccinations at the company.

Duration of the new regulations

To the extent that any company regulations for protecting against an infection with corona virus still exist in the workplace at all, these have once again been limited in time until the end of 25 May 2022.

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Alexandra Groth

Alexandra Groth

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 341
M +49 152 2417 4406