Employment Law17.02.2022 Newsletter
Status: 17 February 2022
The so-called company 3G regulation and home office obligation will still apply throughout Germany until 19 March 2022 on grounds of the provision in Section 28b of the German Infection Protection Act (Infektionsschutzgesetz - IfSG): as we all know, workers are required to carry proof of vaccination or convalescence or current certification of a negative corona test when entering their place of employment. Employers are required to check this and document such checks. Likewise, in the case of office work or comparable activities, the employer must offer employees the opportunity to perform this work from their homes unless compelling operational reasons to the contrary exist. Employees must take up the offer, unless there are reasons to the contrary on their part.
According to the regulations adopted yesterday, all far-reaching protection measures are to be lifted in a final step. According to current information, this means that both the home office obligation and the nationwide company 3G regulation will be lifted at the end of 19 March 2022. Only in the context of low-threshold basic protection measures to contain the incidence of infection and to protect vulnerable groups will it be mandatory to provide proof of vaccination, convalescent and test status in certain areas for a further three months. A legislative process is already in preparation for this, and it is anticipated that this will be completed before the expiry of the current regulations on 19 March 2022. If - as is evidently currently intended - the comprehensive, company 3G regulation does indeed come to an end after a further three months at the latest, many employers will be faced with the question of what company measures they can or even must take.
Maintenance of company access restrictions
Can employers, on their own initiative, continue to require 3G for the workplace beyond 19 March 2022 - insofar as the requirement to provide proof of vaccination, convalescent and test status is actually lifted for the workplace? This is supported by the fact that the employer naturally has domiciliary rights over the business. However, unilaterally ordering the continuation of company 3G requirements is not without problems.
A differentiation will again have to be made between status checks and mandatory testing: employers will certainly be able to order daily testing as a condition for accessing the business. However, it will no longer be permissible to check the vaccination or convalescent status for data protection reasons once the basis for intervention under data protection law in Section 28b IfSG ceases to apply. Even after Section 28b IfSG came into force, the employer did not have a full right to information and ask questions about the vaccination or convalescent status of employees outside the care and healing sector.
For example, on 19 October 2021, the Data Protection Conference explicitly pointed out again in its decision on vaccination status that employers may not process employees' vaccination status without an explicit legal basis. This situation will arise again with the expiry of Section 28b IfSG, which means that enquiring as to an employee’s status is already excluded from a data protection point of view. If the employer violates this, it faces considerable fines and damage claims.
Any action taken by the employer against employees who, as of 20 March 2022, once again lawfully refuse to provide proof of vaccination or convalescent status, violates the prohibition of disciplinary measures under Section 612a of the German Civil Code [Bürgerliches Gesetzbuch - BGB]. If the employee suffers disadvantages as a result, the employer is obligated to pay compensation (e.g., default of acceptance wages pursuant to Section 615 sentence 1 BGB).
Obligation to delete the checked and documented data
Employers will also no longer be able to rely on already checked and documented employee data on vaccination or convalescent status. As things currently stand, these data would have to be deleted at the end of 19 March 2022 with the expiry of the regulation of Section 28b (3) sentence 9 IfSG and lifting of the obligation to check 3G status.
Mandatory corona testing as an access restriction
In order to protect against infection at the workplace, employers may, on the basis of their domiciliary rights - taking into account any co-determination rights of the works council - also order corona tests as a prerequisite for accessing the workplace in addition to the established hygiene measures (Section 618 BGB, Section 3 (1) German Occupational Health & Safety Act [Arbeitsschutzgesetz - ArbSchG]; cf. also Labour Court [Arbeitsgericht - ArbG] of Offenbach, judgement dated 3 February 2021 - 4 Ga 1/21).
However, the employer must bear the costs of the tests and also allow testing during working hours.
There are good reasons to assume that the employee has a duty to cooperate pursuant to Section 241 (2) BGB. In the event of an unjustified refusal, the employee risks not being able to perform his work and ultimately no entitlement to his wage.
Although the Conference of Minister Presidents (MPK) has agreed that the mandatory home office regulation pursuant to Section 28b (4) IfSG will cease to apply upon its expiry on 19 March 2022, the federal and federal state governments have agreed that employers may continue to offer home office work in consultation with employees. This is the case where no operational reasons to the contrary exist and it is in the interest of protecting against infection at the workplace. In particular, reference is made here to working in open-plan offices, where employers are still well advised, on grounds of health protection reasons alone, to provide benevolent home office arrangements for employees who work in such open-plan offices.
Co-determination rights of the works council
In the absence of a statutory basis, the co-determination rights of the works council must be observed when an employer orders access restrictions to the company beyond 19 March 2022.
Thus, in the case of the introduction of mandatory corona tests as a prerequisite for gaining access to the company, the works council's right of co-determination pursuant to Section 87 (1) No. 1 and No. 7 of the German Shop Council Constitution Act [Betriebsverfassungsgesetz - BetrVG] definitely comes into consideration. The works council's right of co-determination under Section 87 (1) No. 14 BetrVG, which is no longer entirely new, also have to be taken into account when introducing home office regulations.
If employers wish to continue to apply after 19 March 2022 the regulations that are currently still in force nationally - insofar as this is even permissible - discussions should therefore be held with the relevant works council in good time.