Corona-Level on red: 3G-rule for employees in Bavaria and employer's cost-bearing obligations

Up until now: 3G in businesses with customer contact

Since 19.10.2021, in Bavaria according to § 3 Sec. 1 of the Bavarian Infection Protection Measures Ordinance (BayIfSMV), the 3G rule also applies to the "provider, organiser, operator" and their employees in facilities and at events if there is direct customer contact. If an employee is neither vaccinated nor recovered, a test certificate must be available on at least two days per week in order to comply with the 3G rule. This proof of testing must be paid for by the employer due to Sec. 4 para. 1 of the Covid-19 Occupational Health and Safety Ordinance (Corona-ArbSchV).

Red level: 3G or 3G+

The Bavarian authorities have now determined on 09.11.2021 that the "red" level has been reached in the Corona traffic light system. The 2G rule has applied to customers and visitors at almost all facilities and events since then.

The following special regulations are relevant for employees and employers:

• From now on, in establishments with customer contact, proof of testing can only be provided by a PCR test (Sec. 17 No. 3 BayIfSMV).
• In all other companies with personal contact (including colleagues!) with more than 10 employees, the 3G rule applies. Here, however, the test can still be provided by a rapid or self-test (Sec. 17 No. 4 BayIfSMV). The trade sector and local and long-distance public transport are excluded.

If the employer employs non-vaccinated or non-recovered workers, he must ensure in future that he takes the correct tests into account: In companies with customer contact, a PCR test is necessary; in the other companies, a rapid or self-test is sufficient.

Cost bearing by the employer

The question of which type of test is necessary in the workplace to comply with the 3G rule becomes important when it comes to the employer's obligation to bear the costs:

In principle, according to Sect. 4 para. 1 Corona-ArbSchV, the employer must provide a "direct pathogen detection of the coronavirus SARS-CoV-2" free of charge twice per calendar week. For this purpose, reference is made to such tests with approval by the Federal Institute for Pharmaceuticals and Medical Products (BfArM). According to the BfArM, so-called "direct pathogen detection of the coronavirus SARS-CoV-2" are antigen rapid tests. Until now, such tests were also sufficient for access to the business - now, however, only a PCR test is permissible for businesses with customer contact. The Bavarian Health Minister Holetschek hinted at an obligation to pay for these tests as well.

However, due to the explicit wording of Sec. 4 para. 1 Corona-ArbSchV and the information provided by the BfArM, the employer's legal obligation to bear the costs does not currently extend to PCR tests; according to the current legal situation, there is only an obligation to take over the rapid test. Of course, this does not preclude the voluntary acceptance of PCR tests.

Exemption for individual areas

The DEHOGA has currently achieved an exception for the gastronomy and accommodation sector as well as body-related services and their employees in the yellow and the red stage of the hospitality chain, according to which a current antigen rapid test every working day is sufficient instead of a twice-weekly PCR test and can be presented accordingly.

Future clarification would be desirable

The current Corona-ArbSchV expires on 24.11.2021. Should the legislator actually intend to cover the costs of a PCR test, it is to be expected that the new Corona-ArbSchV will be amended accordingly.

Further developments

Due to the dynamic situation of the pandemic, media reports indicate that constantly updating and possibly also uniform federal regulations for the final containment of the Corona pandemic are to be expected in the near future. We will keep you informed on this matter.