Lawmakers decided not to extend into the “epidemic situation of national scope” beyond November. Instead, the Infection Protection Act was amended.
After the Bundesrat also approved the amendment to the law on Nov. 19, 2021, the law will enter into force as of Nov. 22, 2021.
In the future, only employees with 3G status (vaccinated, recovered, tested) will be allowed to enter the workplace. The employer must provide information on this and must check that all persons entering the establishment have been vaccinated, have recovered or have tested negative. Exceptions apply only if a test is taken immediately on site or a vaccination offer is taken up.
Employees should also return to work in a home office whenever possible. According to § 28b para. 4 IfSG n.F., employers must offer their employees in the case of office work or comparable activities to carry out these activities in the home office if there are no “compelling operational reasons” to the contrary. The employees shall accept this offer unless there are reasons to the contrary on their part. In this respect, vaccination or convalescent status is irrelevant; the home office obligation generally applies to all employees who perform office work. According to the clear wording, a proportionate posting to the home office – e.g. 50 percent – should also be ruled out.
Violations of the Infection Protection Act can lead to consequences for employees under labor law
The citizen tests are again free of charge. As of November 12, 2021, everyone is again entitled to at least one free rapid antigen test (PoC test) per week – and this applies regardless of vaccination or convalescent status.
Violations of the 3-G rule in the workplace are punishable by fines on the part of employers and employees. Employees also face consequences under labor law. For example, if an employee cannot work because he or she is not vaccinated, recovered or tested, he or she will lose his or her pay entitlement. In addition, termination for personal reasons may also be considered.
Employers are allowed to process the collected data under the new Infection Protection Act in order to perform inspection duties. However, he is not allowed to store the data in the long term.
Employers and employees in long-term care facilities of the inclusion assistance must be able to present proof of a negative rapid or self-test or PCR test in addition to the vaccination or convalescent status. The same applies to visiting persons such as relatives, but also those who enter the facilities for professional reasons (e.g. parcel delivery persons, craftswomen or therapists).
Employers should educate and allow vaccinations even during working hours
To this end, a vaccination support obligation is maintained for employers, enabling protective vaccinations of their employees under certain conditions during working hours. In companies, the willingness to be vaccinated should continue to be promoted by addressing employees and by an in-house information campaign. Information about the health hazards posed by the SARS-CoV-2 coronavirus and about the possibility of reducing these hazards by means of a protective vaccination should be expressly made the subject of instruction under occupational health and safety law. Company physicians and inter-company services of company physicians who offer protective vaccinations in the company should be supported by the employer through organizational and personnel measures.
Conclusion:
The new rules will certainly cause friction in the workplace. For example, it remains completely unclear who is to bear the cost of the test evidence. There is at least no direct indication of this from the sparse legal materials of the Infection Protection Act. However, since employees must generally offer their labor as owed, they are probably also obligated to procure the test certificates themselves and to bear the costs for this. However, employers have the right to make changes according to § 4 para. 1 Corona-ArbSchV n.F. not only – as before – to provide employees with a free test twice per calendar week. Instead, they must in future offer free testing at least twice per calendar week using in vitro diagnostics that are suitable for the direct detection of pathogens and are marketable on the basis of their CE labeling. Accordingly, the recommended resolution assumes that employers will only have to bear the costs for two free tests (BT-Drs. 20/78, page 9). As a result, the costs are thus shared between the employer and the employee.
If you too are experiencing difficulties at work due to the new Infection Protection Act, you should not waste precious time and seek legal advice immediately. As a competent contact person with years of union experience, I am at your disposal. Together with you I check whether and how you can defend yourself
Please contact me by e-mail or phone. In a personal meeting appointment we can discuss the details and further procedure.
