Enlarge image
The employer can now also query the test and vaccination status
Photo: Julian Stratenschulte / dpa
Access only vaccinated, recovered or tested: the 3G rule will apply in the future at the workplace. After the Federal Council has approved the new Infection Protection Act, according to the Federal Ministry of Labor, the requirements will come into force "in the coming days", probably on Wednesday. The most important questions and answers in advance at a glance.
Who does the 3G rule apply to in the workplace?
For all employees and employers.
"The law speaks of employees," says Thilo Mahnhold, 48, specialist lawyer for labor law from Frankfurt am Main.
This also includes civil servants, judges and soldiers.
The 3G rule not only includes the office, but also places outside on the company premises.
Construction sites are also considered workplaces, as are storage rooms, canteens or accommodation.
According to the Federal Ministry of Labor, the home office is not a »workplace«, as are jobs in vehicles.
The law will come into force next Wednesday, November 24th.
And how is it checked?
Basically, employees and employers themselves are only allowed to enter a workplace if they have proof of their 3G status with them.
There are only two exceptions: either to be tested in the workplace or to be vaccinated.
According to the Ministry of Labor, the 3G verification requirement "also applies to employees who cannot be vaccinated for medical reasons".
The controls should focus on the validity of the test evidence.
Because anyone who has not been vaccinated or recovered has to show a negative test every day.
Vaccinated or Genesis can be exempted from daily access controls once the employer has checked and documented their evidence.
Can the employer now check my vaccination status and my present test - and is there any other data that may be collected?
The employer can check and document vaccination status, recovered status and test, says Mahnhold.
Normally, it should not be necessary to save further data.
"The employer should also record the vaccination status for a longer period of time, at least if the employee agrees," says the labor lawyer.
The problem lies with those who need to be tested, they need to be checked daily.
Is a self-performed quick test sufficient here?
"No, the self-test is not enough here," says the labor lawyer.
A rapid test that is no longer than 24 hours old is required, which is carried out by a “service provider” that complies with the Coronavirus Test Ordinance - this includes public test centers or medical practices.
Tests in the company by trained personnel are also possible.
This is to ensure that the tests run properly.
The employer must offer this test opportunity at least twice a week.
PCR tests must be performed a maximum of 48 hours ago.
And who pays for the tests?
The employer pays for the test that is carried out in the company.
The employee has to pay for all further tests himself.
The so-called citizen test can be taken once a week in test centers free of charge.
Are there any grants from the employer for the external tests?
"No, the employee has to bear all of this himself," says Mahnhold.
And how long can the data be stored?
The data on the test and vaccination status of the individual employee must be saved by the employer for some time for documentation purposes.
"The new Infection Protection Act applies until March 19 of the coming year, as long as the data for documentation may also be backed up, if necessary in individual cases," says Mahnhold.
After that, says the labor lawyer, the employer will basically no longer have a handle.
In general, only the data that is relevant for admission controls or the hygiene concept in the company may be backed up.
Are there also employees who are exempt from the regulations in the new Infection Protection Act?
No, this is not existing.
And what am I at risk if I show a fake vaccination certificate or a fake test - and it is discovered?
"Then it rattles," says Mahnhold.
Anyone who cheats on their vaccination or test status is liable to prosecution.
The sentence: imprisonment for up to one year and a fine of up to 25,000 euros.
"In my opinion, the employee is also risking his or her job at this point," says Mahnhold.
This criminal act, says the expert, is also at the expense of the employer, who is unable to meet his control obligations.
According to the lawyer, termination without notice may also be possible here.
Individual companies had previously made individual regulations - will the new Infection Protection Act make them superfluous?
"The law cannot be undermined by a works agreement," says Mahnhold.
In other words: it cashes in any company agreement that would weaken 3G.
It is questionable whether further protective measures such as 2G can be agreed.
It is currently extremely difficult to forecast and a question of weighing up the case law, says Mahnhold.
In the past few days, there has also been repeated discussion about compulsory vaccination for individual occupational groups.
Has it been introduced by the new Infection Protection Act?
"No, that cannot be derived from the new Infection Protection Act," says Mahnhold.
What comes back is the obligation to work from home.
Who is allowed to work from home now?
The employer must offer work from home to all employees for whom there are no "compelling operational reasons" against it.
Compelling reasons would be, for example, if production had to be stopped without the employee concerned.
Basically, the home office is an offer that the employer will have to make in many cases and that the employee can refuse, says Mahnhold.
What if I don't have the opportunity to concentrate on my work at home?
"If the living situation does not allow it, then the employee can refuse and must adhere to the 3G regulations in the company," says Mahnhold.
When should the home office obligation apply - and do I still have to consider something in the agreement with my employer?
The home office requirement is expected to apply from Wednesday of next week, November 24th.
"Special arrangements in advance are not necessary," says Mahnhold.
And what if an employee doesn't want to participate - neither with the 3G regulations at work, nor with the home office obligation?
"Then there is no money either," says the expert.
The law speaks of the debtor's inability to provide services, says Mahnhold.
He regards a dismissal here as rather "difficult".
"For this, the law is simply limited in time, so that the termination would probably be critical," says Mahnhold.
With material from AFP
