New Infection Protection Act: 3G-rule for employees
What employees and employers must pay attention now
In the future, employees will have to present 3G proof in order to be allowed to enter the company. At the same time, the employer must monitor compliance with the 3G rule. Non-vaccinated and non-recovered employees must be prepared for mandatory testing. An obligatory home office is regulated by law.
3G regulation at work
Across Germany, workplaces where workers come into contact with each other or with third parties (e.g. customers) may now only be entered by workers who have been vaccinated, recovered or tested (3G regulation). The same applies to transports of several workers to the workplace or from there to another location (e.g. field service, customer visits).
The following special features apply to testing: PCR tests are valid for a maximum of 48 hours and rapid tests (also self-test) for a maximum of 24 hours.
Duty of control
The employer is under obligation to control the compliance with the 3G-rule daily and must carry out entry checks. Evidence must be provided that all workers present at the workplace on the day in question have complied with the 3G rule.
In the case of vaccination or recovery, a "simplified control process" can take place: It is sufficient to record once the complete vaccination protection (2 vaccinations + 14 days) or the recovery. For the latter, it should be noted that the convalescence certificate is valid for a maximum of 6 months before it has to be renewed. In this respect, this date is to be deposited.
In order to fulfil the control and verification obligations, the employer is explicitly entitled to process personal health data of the employees. The data must be deleted after 6 months.
Penalty provisions, criminal liability
A fine of up to EUR 25,000 may be imposed on (i) an employee who enters the workplace without valid 3G evidence or fails to produce such evidence and (ii) an employer who fails to comply with his or her monitoring obligations.
A punishment of up to two years' imprisonment or a fine is imposed on anyone who knowingly fails to properly document the testing or supervision of a test with the intention of deceiving the law. However, the criminal liability refers to the respective person who was entrusted with the testing.
Home office obligation
The newly amended Sec. 28b para. 4 of the Infection Protection Act ("Infektionsschutzgesetz", IfSG) stipulates that employers must offer employees who perform classic white-collar work or comparable work the opportunity to perform their work from home. This does not apply if "compelling operational reasons" contradict an exclusive home office activity. The employee must accept such an offer unless he/she can provide reasons to the contrary.
Testing of workers, bearing of costs as well as consequences of not submitting a test
Due to the new legal situation, employees who are neither vaccinated nor recovered must be tested in order to perform their work in the company, depending on the test, either daily (rapid test) or several times a week (PCR test). The employer is obliged to offer a free (rapid) test at least twice a week. However, the employer does not have to offer a test for all days, which means that employees who work at the workplace on site for more than two days have to pay for their test themselves.
If the non-vaccinated and non-genetic worker cannot provide a test, he or she may not enter the workplace. Consequently, the worker cannot perform work for this period unless there are alternative options such as home office work. In these cases, labour law sanctions against the employee are possible. In particular, the employee's entitlement to remuneration lapses for the period of absence.
Measures to come into force, validity of the new regulations
The measures described are valid from November 24, 2021 until March 19, 2022 for the time being. Due to the rapidly changing infection situation, the legal requirements for employers and employees can change within a few days. In particular, the possibility of individual federal states adopting different regulations should be considered. We will keep you updated via our newsletter and are also available to answer any questions you may have in person.
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