Reinstatement of mandatory working from home and the 3G rule in the workplace

Given the sharp rise in infections, on Thursday, 18 November 2021, the Bundestag approved a Bill to Amend the Infection Control Act and the Occupational Health and Safety Regulation put forward by the Social Democrats (SPD), Greens and the Federal Democrats (FDP). The bill introduces much stricter Covid rules for employers nationwide. There are two key obligations for employers:

• It is likely that from 22 November 2021 there will again be a general obligation for office employees to work from home, unless there are compelling operational reasons or reasons on the employee’s side not to do so.
• All other employees may come to the office only if they are vaccinated, recovered or tested (mandatory 3G rule). Below we answer the most important questions about working from home and the 3G rule in the office:

I. Reinstatement of mandatory working from home

1. What applies specifically?

Under the amended version of section 28b(4) German Infection Control Act, employers are required to offer their employees who do office work or similar activities the opportunity to carry out those activities from home unless there are “compelling operational reasons” not to do so. Employees must work from home unless there are good reasons not to. Vaccinated or recovered status does not matter in this respect; mandatory working from home applies generally to all office staff. According to the clear wording, the previous practice of having a certain proportion of employees working from home (e.g. 50 per cent) is likely not to be permitted either.

The mandatory working from home rule is nothing new: in fact, it simply means that the provision in force from 23 April 2021 to 30 June 2021 in section 28b(7) German Infection Control Act, old version, has now been reactivated. Essentially, the same rules as in the first half of 2021 are expected to apply.

2. When will mandatory working from home start, and for how long?

The regulations are set to come into force as of Monday, 22 November 2021 and will apply until the end of 19 March 2022. A one-off extension of up to three months is said to be possible (section 28b(7) German Infection Control Act).

3. When are employers exempt from enforcing mandatory working from home?

Employers are exempt from enforcing working from home if and insofar as (in relation to a specific employee) “compelling operational reasons” prevent that person from working from home. The requirements are strict. According to the explanatory memorandum to the proposed section 28b(7) German Infection Control Act, “compelling operational reasons” are said to exist only if operations would otherwise be significantly restricted or could not be maintained at all. This can be for either technical or organisational reasons. The unavailability of the necessary IT equipment, necessary changes in the organisation of work or insufficient training of the employees concerned can normally be claimed only temporarily.

4. Do employees have to work from home?

No. It is true that the employees are in principle obliged to accept the offer to work from home. However, they may turn down the offer if there are reasons to do so. These may be lack of space at home, disturbances caused by third parties, or inadequate technical equipment. It does not appear to be necessary for them to disclose the reasons to the employer. Rather, it is sufficient for employees to inform their employer they are unable to work from home.

II. Mandatory 3G rule at work

1. What applies specifically?

Under section 28b(1) German Infection Control Act, employees for whom physical contact with other employees or third parties cannot be ruled out may enter the establishment only if they have been vaccinated, recovered or tested and carry a certificate of vaccination, recovery or testing, keeping it available for inspection or having deposited it with the employer. Vaccination, recovery or testing is therefore a requirement for access. If this access requirement is not met, the employee may enter the company only in order to take a test or be vaccinated in the workplace immediately before starting work. The employer must inform its workforce of these company access rules.

It is notable that this access requirement applies regardless of company size and must therefore also be complied with by small businesses. Until now, the 3G rule in the workplace, for example in Bavaria, applied only to establishments with more than ten employees (section 17, sentence 2, point 4 of the 14^th Bavarian Infection Control Regulation).

2. Does the employer have to check employees’ 3G status?

Yes. Under section 28b(3) German Infection Control Act, employers are required to monitor daily and regularly document the 3G status of their employees by checking the relevant proof. Employees are required to provide proof of vaccination, recovery or test at the employer’s request. Random checks are not enough (implication from section 28b(5) German Infection Control Act).

3. Is processing of 3G status permitted under data protection law?

In order to monitor the access requirements, the employer may process personal data on vaccination, recovery and test status. This data may also be used to adapt the company hygiene concept based on a risk assessment. Under the first sentence of section 28b(1) German Infection Control Act, proof of vaccination and recovery may even be stored at the employer.

4. What Covid tests are allowed?

The test certificate must be presented in physical or digital form in German, English, French, Italian or Spanish. The underlying testing must have been carried out by in vitro diagnostics designed for directly detecting pathogens of the SARS-CoV-2 coronavirus and which can be sold based on their CE marking or special authorisation (section 2(7) of the Covid Control Exemptions Regulation (SchAusnahmV)). Generally, the test may be no more than 24 hours old. Tests using molecular nucleic acid amplification (PCR, PoC-PCR, etc.) may not be more than 48 hours old.

5. Who will pay for the tests?

According to the new legislation and the scant legislative texts, it is not at all clear who should pay for the test certificates. Since the employees themselves are responsible for procuring the test certificates, they will in principle also have to pay for them. However, according to section 4(1) Covid Health and Safety Regulation, as amended, employers must not only continue to provide employees with a free test twice per calendar week; in future they will have to offer free testing at least twice a week via in vitro diagnostics which can directly detect pathogens and which can be sold based on their CE marking. Accordingly, the legislative recommendation is based on the assumption that employers only have to pay for two free tests (Bundestag document 20/78, page 9). This means, as a result, that the costs will have to be shared between employer and employee.

6. Who has to arrange for a test certificate?

In principle, employees have to arrange for a test certificate themselves. However, the employer may offer employees a test in the workplace administered by staff with the necessary training or knowledge and experience. It is true that section 4(1) Covid Health and Safety Regulation, as amended, does not require the employer to offer its own tests. Instead, external testing can also be offered. However, in order to ensure business operations continue to run as smoothly as possible, it might be useful for larger companies to offer the two free tests in-house on Monday and Tuesday.

7. What should be done if an in-house test is positive?

The employee concerned must leave the company immediately. If they can work from home office, they will still be paid as normal. But if the employee is unable to work from home, their entitlement to continued pay depends on a variety of circumstances of the individual case. If they actually become unfit for work due to Covid, they will be entitled to continued pay under section 3 of the German Continued Remuneration Act. If they are fit for work and the authorities order a period of self-isolation (quarantine), depending on the duration of the required absence from work, there may be a right to continued pay under section 616 of the German Civil Code on account of the temporary absence.

8. What are the consequences for employers of breaches?

Employers that do not or do not properly monitor compliance with access requirements face a fine of up to EUR 25,000 under section 73(1a)(11d) German Infection Control Act.

III. Conclusion:

For the time being, employers will have no choice but to send most of their office staff to work from home. Only employees whose presence in the company is required for compelling operational reasons may continue to work in the office. These employees may only be allowed into the office if they have either been vaccinated, recovered or tested on a daily basis and can provide evidence to that effect. Employers must check and document that the access requirements are in place. They must also inform staff about these access requirements.