During the course of the COVID 19 pandemic, the legislator has enacted countless provisions providing a legal basis for measures to combat the pandemic. Several of these provisions are linked to an "epidemic situation of national importance". However, this ends with the expiry of 25 November 2021. Therefore, the Bundestag passed the new Infection Protection Act of the so-called “traffic light” parties, the approval of which will be discussed by the Bundesrat today, on 19 November 2021. Once it enters into force, the new regulations of the Infection Protection Act are to initially apply until 19 March 2022.
The previous provision of Sec. 28a (7) IfSG is now being replaced by a nationwide uniform catalogue of measures with far-reaching labour law consequences.
“Mild” obligation to contract: back to the home office
In its latest version, the catalogue of measures under the Infection Protection Act once again stipulates that employers must offer their employees the opportunity to work from home. This applies at least in the case of office work or comparable activities. Employees are obliged to accept the offer.
This provision, which has the semblance of an obligation to contract, is weakened by restrictions on both the employer’s and employee’s sides: for example, the employer's "obligation to offer home office" is subject to the condition that compelling operational reasons to the contrary do not exist. There seems to be a consensus that a lack of technical equipment at businesses cannot constitute such an operational reason.
On the employee’s side, in contrast, the employee may indeed reject the offer if "reasons" to the contrary exist. This includes, for example, if the employee states that he or she is unable to work at home, either because of a lack of space or for other personal reasons of the employee.
Vaccinated, recovered or tested (“3G”) rule at work
What the amendment of the IfSG aims to achieve is already being practised in some areas of the Federal Republic. For example, a well-known bank in Bavaria has temporarily blocked the access cards of its employees to the office building until they provide proof of vaccination, recovery or test (geimpft, genesen, getestet – “3G”).
Employees can soon expect something similar throughout Germany. For example, the new version of Sec. 28b (1) IfSG stipulates that workplaces may only be entered if employees have been vaccinated, have recovered or have been tested. Employees must present and carry with them corresponding proof. A negative test must not be older than 24 hours, a PCR test not older than 48 hours. The provision is to apply to all businesses where encounters with other persons cannot be ruled out.
Another new aspect is that the two rapid antigen tests previously provided by the employer on the basis of Sec. 4 of the German Corona-Occupational Health and Safety Ordinance (Corona-Arbeitsschutzverordnung - Corona-ArbSchV) do not meet the requirements of the new Sec. 28b (1) IfSG; this is at least the case if employees carry out the rapid tests themselves. Under the new law, only on-site supervised testing, in-company testing by trained personnel, or testing performed by a professional service provider suffices as proof of testing. Tests for self-administration without the supervision of either the employer or a person appointed by it are thus not suitable as evidence.
The law does not answer the question of who is to pay for employee testing to provide 3G proof. According to the explanatory memorandum to the Act, however, the employee is solely responsible for providing proof of testing.
It is also worth mentioning the provision of Sec. 6 Corona-ArbSchV, which remains in force. Employers are still obliged to provide two free rapid tests every week.
What the consequences of not providing proof are has not been clarified: if employees cannot legitimise themselves to enter the workplace because they do not have proof of recovery or vaccination or do not want to take a test, the decisive question is likely to be whether they can properly perform their job duties from another location, such as a home office. If this is not possible because of the nature of the job, then according to Federal Minister of Labour and Social Affairs, Hubertus Heil, a reduction in wages might also come into consideration.
What else can be expected?
Compulsory vaccination for certain occupational groups has not (yet) been stipulated by law, or at least such a regulation cannot be inferred from the current draft version of the law amending the IfSG. The draft also leaves open the question of the continued payment of wages in the event of business closures that are ordered by the authorities. Recently, the Federal Labour Court (Bundesarbeitsgericht - BAG) addressed this issue and ruled that employees lose their claim against the employer in such a case (judgement dated 13 October 2021 - 5 AZR 211/21).