Workers who are not vaccinated will have to go through daily checks and submit their current test.
(Photo: imago images / Friedrich Stark)
Dusseldorf The 3G regulation in the workplace is expected to apply from Wednesday. Employees are then only allowed to come to the office if they have been vaccinated, tested or recovered.
The regulation is controlled by the employer. He is obliged to monitor and document compliance on a daily basis. Violations can result in fines of up to 25,000 euros. To this end, the employer has recently been given a right to information and can thus query the 3G certificates.
But what does that mean in concrete terms – also with a view to data protection? Answers to the most important questions:
Which data can the employer control?
The 3G control includes the first and last name, proof of vaccination, recovery or tested status and its validity. The vaccination certificate is currently still valid indefinitely and the recovery status is six months. The expiry date of evidence of recovery should be documented by the employer. A PCR test is valid for 48 hours, the so-called citizen test loses its validity after 24 hours and must therefore be renewed daily.
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Lawyer Daniel Hennig from the law firm CMS adds that a negative quick test also allows access to the office. However, this must be carried out under the supervision of the employer. However, employees are not entitled to this. “Both employers themselves and many works councils are currently reluctant to do this. Especially because of the organizational effort, ”explains Hennig. The supervisor must check whether the test person is carrying out the test procedure properly and must therefore be instructed in advance.
Who is actually considered an employee?
This is a question that concerns some companies at the moment, because the legislature has not yet made a clear statement. According to the law, this term includes, in particular, employees, trainees and persons similar to employees. “Contract partners, customers and field workers are currently not included,” explains Hennig. The client does not have to control these people.
The lawyer believes, however, that the client must at least be free to voluntarily carry out 3G checks on these people as well – especially if the contractor acts negligently. “Infectiously, it makes no difference, because the virus does not differentiate depending on the contractual situation.” Here, health protection must clearly take precedence over data protection.
Who can control the workers?
Suitable employees or contracted service providers. They must treat the collected data confidentially.
Who is allowed to document the relevant data?
“The respective superiors should not take on this task – especially in corporate structures”, says the lawyer. It should be a “central, neutral body” to ensure that it is not possible for unauthorized third parties to take notice of it. “This could be done by employees from the HR department or the security department, for example,” explains Hennig.
Can I use an app for controls and data storage?
The use of an app is possible, but employers should pay particular attention to data protection. “Since I pass on specially protected health data to a third party provider, it must be ensured that they are secure,” adds the lawyer.
How long can the data be stored after the query?
The data must be deleted after six months at the latest. Should the 3G obligation be extended beyond March, the vaccination status would have to be queried again.
Who can be informed about the data?
The data must be handed over to the competent authority if it needs it for the purpose of tracking an infection chain. Otherwise, apart from the checking colleagues, neither the superiors nor colleagues may be informed about the vaccination status or the like. “To be on the safe side, the responsible colleagues should also sign a confidentiality agreement,” says Hennig.
What may the requested data be used for?
The information about a possible vaccination status is only used for follow-up purposes. The lawyer warns: “The data must not be used to plan a Christmas party with the vaccinated colleagues on this basis.”
Is it possible to avoid being outed as a vaccinator by the daily checks?
The proof of vaccination or recovery is checked once and is valid for an indefinite period – or for six months from recovery. The relevant employees will be able to enter the building in the coming weeks without being checked. Workers who are not vaccinated must go through daily checks and submit their current test.
It quickly becomes apparent who has not yet had a vaccination. “Unfortunately, that cannot be avoided,” explains Hennig. “It simply takes more effort to check the validity of a test than to wave people through with deposited evidence.” Nevertheless, the lawyer advises against making clear distinctions. “Employers should not give different colored wristbands or different colored cards for the respective status.”
More: Aerosol researcher – “3G gives a dangerous feeling of security.”