A new regulation in the infection protection act (Infektionsschutzgesetz or IfSG) has been resolved and will be effective as of tomorrow, 24 November 2021. The regulations are limited until 19 March 2022.

As before, Employers are obliged to provide rapid antigen or self-testing at least twice a week for all employees who work at the office or on site. Exceptions are made for fully vaccinated employees or those recovered from COVID-19.

The “Home office obligation” has been re-introduced: In case of office work or comparable activities, employers must offer employees the opportunity to carry out these activities at their home if there are no compelling operational reasons to the contrary. Employees must accept this offer if they do not have an objective reason preventing them to work from home.

Employers are obliged to check and document compliance with “3G” rule

Additionally, from now on, employers and employees must carry a vaccination and convalescence certificate, or a current certificate of a negative COVID-19 test when entering the workplace.Employers must verify that workers comply with this obligation, and they are obliged to document these verifications.

It is sufficient to document a vaccination certificate, once. The same applies in principle to convalescence certificates. In this case, however, if the convalescence status expires before 19 March 2022, the respective person must either submit a vaccination certificate once or a test certificate every working day. It is therefore advisable to also document the expiry date of convalescent certificates.

A self-test is sufficient only if conducted under supervision and recorded by the employer or a commissioned person with the necessary knowledge and experience. The name and appropriate instruction of this person must also be documented. The test may be max. 24 hours old. A PCR-Test which has been conducted less than 48 hours ago is also valid.

In order to comply with the principle of data minimisation according to Article 5(1)(c) of the GDPR, it is sufficient for the purpose of documentation to “tick off” the name and surname of the employees on a list on the respective day of the inspection if the respective proof has been provided by the employee.

Consequences for employees who refuse to get tested

Employees who refuse to comply with the 3G rule may not enter the office. If possible, they have to be offered to work from their home office. If this is not possible due to the nature of the job, or employees refuse to work from home, it is possible that employees will face a loss of their salary claim and even sanctions under employment law, such as a warning letter or a termination.

There is not yet any jurisprudence on the validity of such consequences, and it would depend largely on the particular circumstances of each individual case. Therefore, a legal consultation is essential when facing such a situation, both for employers and employees.