Employers are obliged to check and document this on a daily basis. Violations can result in fines of up to 25,000 euros.
“The employees are obliged to take care of the test themselves,” says Michael Witteler, partner at Pusch Wahlig Workplace Law (PWWL). You could of course use the two tests that the employer has to provide on a weekly basis, or the free citizen tests.
However, the Federal Ministry of Labor makes it clear that tests provided by the employer are only valid if they are carried out under supervision. Simply laying out self-tests at the gatekeeper will not be enough.
Hans-Hermann Aldenhoff, head of the German practice at the law firm Simmons & Simmons, would recommend that each of his clients make the test available – “if only for evidence purposes and because it significantly strengthens their position in the event of a dispute with non-vaccination users”.
What happens if employees have not been vaccinated or have recovered, but do not want to be tested either?
According to the amended Infection Protection Act, employers must offer office workers the option of working from home if there are no operational reasons to the contrary. “And in the current situation there is an obligation of employees to accept a home office workplace,” says PWWL lawyer Witteler. And there is no compulsory test in the home office.
If, however, it is not possible to work from home and work in the company fails due to the employee failing to comply with the 3G rule, the employer can and must send the employee home, emphasizes Tillmann Hecht, specialist lawyer and partner at Noerr in Frankfurt.
In this case, there will be no entitlement to wages and salaries, as the employees will then not be able to perform the work due to the new regulation in the Infection Protection Act. “And then the principle applies: Without work, no wages,” says Hecht.
Since the employee violates his contractual obligation to work, measures under labor law are also conceivable, from a warning to termination. The Ministry of Labor also writes that employees who cannot or do not want to present a 3G certificate “must generally fear the consequences of termination law”. However, the principle of proportionality must be observed. In addition, employers should bear in mind that the 3G regulation is initially limited to March 19, 2022.
What are the advantages of employers once they have found out and saved the vaccination or convalescence status of an employee?
Once the employer has checked the proof of vaccination or recovery and has documented this check, he can then generally exclude the relevant employees from the daily access controls, says Thomas Ubber, partner at Allen & Overy in Frankfurt: “The control effort is therefore significantly reduced. ”
However, due to the principle of data minimization, the employer may only document the fact that there is corresponding evidence – but not which one. Even after the Infection Protection Act has been changed, the right to ask about the vaccination status only exists in certain facilities such as daycare centers or nursing homes.
The recorded data may only be used for access control, but cases of abuse cannot be completely ruled out, says Ubber. For example, an employer could conclude from employees who demonstrate a daily test that they have not been vaccinated and have not recovered from Covid disease.
This could have – even impermissible – consequences, for example that employees are kept away from customer appointments, isolated from the rest of the workforce or, in the worst case, identified as “troublemakers” who are not part of the company
fit. “This could result in probationary terminations or the non-renewal of fixed-term contracts. “Although this would not be permissible,” emphasizes Ubber, “the inappropriate use of data should often not be verifiable.”
Is there any criticism of the planned 3G regulation?
Some professional and industry associations consider the 3G regime impractical – some advocate compulsory vaccination in the workplace instead. The test and control obligations are not feasible for the building cleaning trade, said Johannes Bungart, managing director of the Federal Guild Association, the Handelsblatt. “Against this background, politicians should be courageous and honest: Better than new test and control obligations, which are impossible for companies to meet, would be nationwide instead 2G in the companies and thus a vaccination requirement at the workplace.”
The Central Association of the German Construction Industry (ZDB) also believes that the implementation of the 3G regulation is only possible to a limited extent. In individual cases, companies should therefore be given alternatives such as a 2G regulation, said chief executive Felix Pakleppa to the Handelsblatt. “Even if a statutory vaccination requirement is always only the second-best solution, it should not be ruled out from the outset.”
Serious consequences are also feared for the logistics industry. According to the previous regulation, logistics centers are rated as workplaces. Accordingly, truck drivers who drive up there for loading or unloading would also have to comply with the 3G rule.
“In the mobile area, the regulation threatens to paralyze supply chains,” said the managing director of the German Transport Forum, Florian Eck, the Handelsblatt. It becomes particularly problematic with cross-border deliveries.
“The staff is often immunized with unapproved vaccines, and tests are not available before delivery. The previously justified exemption of transport personnel from the obligation to test is thus de facto ineffective, “warns Eck. “Company premises can therefore not be driven on or entered, the delivery comes to a standstill.”
The companies have been building lock concepts and developing their own hygiene standards since March 2020. Transport employees should therefore be exempted from the obligation to test insofar as the stay in the respective operating site is only temporary and hygiene and protective measures are observed, says Eck.
Among other things, the lock concepts would also provide for separate toilets for external transport personnel. “If there are no exception rules, this time there will be no traffic jams at the borders, but in the inner cities and at the gates of the logistics centers.”
The Federal Association of Freight Transport, Logistics and Waste Management shares the criticism: “Everything must be done to ensure that logistics run smoothly,” said CEO Dirk Engelhardt to the Handelsblatt.
Are employers allowed to introduce a 2G regulation, i.e. only allow vaccinated or convalescents into the company?
The SPD, the Greens and the FDP, who are negotiating the formation of a traffic light coalition, want to initiate compulsory vaccination for staff in hospitals and nursing homes. This should be “facility-related”, so it could also include cleaning or kitchen staff in a care facility.
Simmons & Simmons lawyer Aldenhoff also considers a 2G regulation in the company and a temporary exemption of non-vaccinated persons to be legally possible if the employer can cite predominant operational reasons.
“This applies in any case if it is practically impossible to work from home.” However, an employer who opts for 2G must continue to pay an employee who has not been vaccinated and is therefore released if he or she would have been willing to take a test, says Aldenhoff .
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