In response to a steep rise in the number of covid-19 cases across the country, German workers are being told to work from home wherever possible as amendments to the Infection Protection Act come into force today, 24 November.
Reinstating an earlier provision of the Act that lapsed on 30 June 2021, office workers, or those undertaking comparable activities, where physical contact cannot be avoided must be provided with the opportunity to work from home, unless their employer can demonstrate “compelling operational reasons” for not doing so.
Employees are obliged to accept this offer unless they can provide reasons why it would be inappropriate to do so. Although, the legislation does not define what reasons an employer or employee can rely upon, Dr Julia Förster, a principal associate in Freshfield’s people and reward team, has the following suggestions.
“Compelling reasons for employers may be, for example, processing and distributing incoming mail, counter services for customers, repair and maintenance tasks – such as IT service – but also special requirements of company data protection and the protection of company secrets,” she says.
For employees, Förster suggests reasons for rejection could include “spatial confinement or interference by third parties”, such as children or spouses. “The employer can request information why the employee is not working from home but cannot challenge the employee’s decision,” she adds.
The new regulations also place new restrictions on entry to workplaces, with employees required to provide proof of vaccination (geimpft), recovery (genesen), or undergo daily testing (getestet) – Germany’s so-called 3G rule.
“While the 3G approach has already been implemented in most sectors of public life in Germany – such as restaurants, cinemas, and museums – during the last few months, there hasn’t been a regulation to apply 3G at the workplace, either on a compulsory or voluntary basis,” says Förster.
“In fact, with the exception of institutions such as hospitals or rehabilitation centres, there was no legal basis for employers to process the health data that comes with the question of the 3G status. The employer did not have the right to ask the employee about their immunisation status.”
Swiftly passed by the Bundestag and Bundesrat last Friday after some political wrangling, the amendments have left German employers with little time to prepare.
“As of today, employers and employees who want to enter the workplace – or who want to use collective transport organised by the employer to the place of work – need to be vaccinated, have recovered within the last six months, or be tested and must be able to provide proof of their status. A negative rapid antigen test result from a recognised testing facility – no self-test – must be provided on a daily basis, PCR tests are valid for 48 hours,” explains Förster. Employees will generally need to bear the costs of any testing.
Entry to the workplace is permitted, even without proof of a negative test result, if a test is offered by the employer and carried out immediately under supervision, explains Förster, who adds that there is no obligation to have trained medical staff able to conduct the test.
Employers are obliged to monitor compliance with the new rules on a daily basis and maintain records of vaccination and recovery certificates. Employees that have proven their vaccination status can enter the workplace without further daily checks if they deposit their proof with their employer. Such a “free pass” only applies to recovered workers for a limited period.
Failure to monitor workers’ status can result in fines of up to €25,000 for employers. Workers that enter the workplace without proof of status are also liable to fines, but the prospect of disciplinary procedures and termination of employment remains unclear, according to Förster.
“If an employee cannot provide a 3G proof, the employer must deny him access to the site. If the employee cannot work from home, there should be no claim to payment of wages. Whether – also against the background of the time limit of the regulation – a termination of the employment relationship is possible needs to be clarified by the labour courts,” she says.
“The 3G rule only applies to the workplace and only for employers and employees. For employees working outside of the operating site of their employing entity – for example, field employees or craftsman – there is no legal obligation to provide a 3G proof but most companies have implemented a 3G requirement for all visitors and suppliers who need to enter the site.”
The regulations run until 19 March 2022, and could be extended by a further three months, but as infection rates rise across Europe new rules may soon surface.
Germany is facing its fifth covid wave with new infections reaching record heights of 66,884 on Wednesday, a significant increase on the 45,326 new cases reported just 24 hours earlier. Almost 100,000 Germans have died from the virus to date.
The country’s health minister, Jens Spahn, has warned that by the end of winter “pretty much everyone in Germany will be vaccinated, recovered, or dead”.
With hospitals under mounting pressure, German officials are said to be considering a lockdown and mandatory vaccinations for all citizens. Germany has a vaccination rate of just 68%, slightly higher than its neighbour Austria (65%), which has gone back into lockdown and announced a mandatory vaccination programme from 1 February 2022.
Elsewhere in Europe, compulsory vaccinations are also being considered in Belgium, while the Netherlands has introduced mandatory social distancing. Ireland has told workers to remain at home unless attending the workplace is “absolutely necessary”. Northern Ireland has likewise called for remote working to stop the spread of the virus over the winter months.