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Home office and 3G at work: test obligations, costs and controls - what applies from today

2021-11-25T08:59:38.070Z


Employees and companies have had to adapt to the new corona rules since Wednesday. For those employees who do not want to be vaccinated or tested, it could be uncomfortable.


Employees and companies have had to adapt to the new corona rules since Wednesday.

For those employees who do not want to be vaccinated or tested, it could be uncomfortable.

Munich - In the fight against the Corona * pandemic, the Bundestag has revised the Infection Protection Act.

The provisions provide for a return to the obligation to work from home and 3G at work.

Employment law specialist Dr.

Wolfgang Schelling from the Noerr law firm to

Merkur.de *.

Dr.

Schelling, in the fight against the pandemic, the Bundestag decided on Thursday to amend the Infection Protection Act.

The following applies in companies 3G: Whoever has not been vaccinated, tested or recovered must stay outside in the future?

Correct, the 3G rule in the workplace now applies nationwide * and regardless of the size of the company.

The new regulations will come into effect on Wednesday, November 24th.

Employees who may have contact with other people in the company are only allowed to enter the company if they have either been vaccinated, recovered or tested and can present proof of their 3G status.

What about employees who are not vaccinated or who do not want to disclose their vaccination status? 

These employees must have a valid test certificate with them every day when they enter the company or present it to the employer.

This test evidence itself must be in written or digital form.

The underlying testing must have been carried out using in-vitro diagnostics that are intended for direct detection of the pathogen of the SARS-CoV-2 coronavirus and that are marketable due to their CE marking or special approval.

Submitting a self-test is not enough.

Rather, the test must either have been issued externally - for example by a test center or in a doctor's office - or as part of an in-house test "under supervision".

There is no entitlement to operational testing.

Do unvaccinated employees have to get tested every day?

Yes.

Employees who have neither been vaccinated nor recovered actually have to present a valid negative Corona test certificate every day.

In principle, the test may have been performed a maximum of 24 hours ago.

When testing by means of nucleic acid detection, such as with PCR or PoC-PCR, the test may not be more than 48 hours ago, so that such test evidence can theoretically be presented every two days.

Employees must take care of these test certificates themselves and present a valid test certificate when starting work.

The employer has to offer a test twice a week, but does not have to carry out the test himself.

He can refer employees to testing by third parties (e.g. doctors or test centers) or - on a voluntary basis - offer company testing by trained staff.

Who bears the costs?

Employees are responsible for providing evidence of the test.

You therefore also bear the costs for the test evidence.

What does the 3G rule mean for the employer?

Employers are only allowed to grant employees access to the company if they have either been vaccinated, recovered or tested and can provide appropriate evidence upon entry.

Does the employer have to check compliance?

Yes.

Employers have to monitor the admission requirements by means of verification checks on a daily basis and to document them regularly.

Bullet-point controls are not sufficient.

So an employer now has - unlike before - a right to information about the vaccination status?

In any case, the employer may process personal data on the vaccination, convalescence and test status to check the entry requirements.

However, the draft law does not contain a specific right to ask questions about the vaccination status.

Are you allowed to electronically record and save the information on the vaccination status or the corresponding vaccination certificates?

The employer is even obliged to document his controls.

The proof of vaccination and recovery may be deposited with the employer.

According to the principle of data economy, however, as little personal data as possible should be stored.

It should be sufficient to record which employees - due to a lack of vaccination and recovery - require daily test evidence. 

What if the employee refuses to be tested, is not vaccinated and cannot work from the home office, such as assembly line workers: Can the employer then cut his salary?

This question will depend on the circumstances of the individual case.

Employees who have not been vaccinated or recovered, and who also refuse to provide evidence of a test, are not allowed to enter the facility.

If the employee cannot work in the home office either, he bears the risk of losing his claim to remuneration based on the principle of “no work, no wages”.

What penalties do employers face if they do not regularly check compliance with the 3G rules and what are employees who violate 3G?

The employer commits an administrative offense if he does not introduce the 3G obligation or does not properly monitor it.

Employees commit an administrative offense if they enter the company without proof of vaccination, convalescence or test.

The amount of the fine depends on the circumstances of the individual case.

In the event of willful violations, a fine of up to 25,000 euros is possible.

As part of the new requirements, the home office regulation is also to be renewed.

Do employers now have to send employees back to the home office, provided there are no operational reasons to prevent this, or is it a matter of discretion?

The home office requirement, which already applies until June 30th, 2021, will be "reactivated".

The home office obligation applies to employees with office work or comparable activities.

Employers are obliged to offer these employees the opportunity to work from home for the time being.

An exception only applies if there are “compelling operational reasons” that prevent work in the home office.

The prerequisite would be that the operational sequence cannot be maintained or at least would be severely restricted.

It is therefore not at the discretion of the employer to decide who or how many employees to send to the home office.

Conversely, are employees fundamentally obliged to accept the offer?

Yes.

As a matter of principle, employees have to accept the home office offer.

However, employees are relatively free to decline this offer.

On the employee side, the home office only needs to be opposed to legitimate "reasons" such as limited space, interference from third parties or inadequate technical equipment.

** In a first version of the interview it was said that the new regulations could "already come into force on Monday, November 22nd".

However, the amendment to the Infection Protection Act was only published in the Federal Law Gazette on Tuesday (November 23).

The corresponding changes in the law have only been in effect since Wednesday (November 24th).


* Merkur.de is part of IPPEN.MEDIA

Source: merkur

All news articles on 2021-11-25

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