Amendment of the Infection Protection Act and Bavarian special measures: Obligation to work from home and 3G in the workplace

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The Upper House (Bundesrat) has unanimously approved the government’s package of laws amending the Infection Protection Act and the Occupational Health and Safety Ordinance.

The regulations will apply from their promulgation, therefore presumably from today (22.11.2021) until the end of 19.03.2022. A one-off extension of three months is to be possible according to the draft law. From the employer’s point of view, the following changes are essential:

1. Return to the obligation to offer work from home

According to the new Section 28b (4) IfSG, the employer is in principle obliged to offer employees who perform office work or comparable activities to carry out their activities from their homes if there are no compelling operational reasons against. Compelling operational reasons presuppose that business processes can be significantly restricted or not maintained at all. Work from home must be offered to all employees who perform office work or comparable activities, regardless of their vaccination or convalescent status. For their part, employees must accept this offer unless there are reasons to the contrary. It is sufficient for the employee to state that working from home is not possible. He does not have to give reasons for this.

2. Access controls in the workplace

Employees who continue to carry out activities on the premises and for whom physical contact with colleagues or third parties cannot be ruled out will only be allowed access to the premises with a 3G proof.

Employees are obliged to carry this proof with them, to keep it ready for inspection or to deposit it with the employer.

3. Daily checks by the employer

Employers have a corresponding obligation to verify the 3G-status of their employees on a daily basis and to document it regularly. In doing so, employers may also process the personal data on vaccination, recovery and test status in order to check the access requirements.

If the 3G evidence is provided by the submission of a negative test result, it must be submitted in embodied or digital form in English, French, German, Italian or Spanish.

With regard to the type of testing, the employee is free to choose between a so-called rapid antigen test (validity: 24 h) or a PCR test (validity: 48h). What is new is that the rapid antigen test must be carried out in accordance with the SchAusnahmV using an in vitro diagnostic device approved in accordance with the Medical Devices Act. According to this, the rapid antigen test must either take place on site under the supervision of the person who is subject to the respective protective measure, or as part of an in-company test by appropriately trained personnel or by an approved Corona test centre.

It is still unclear who bears the costs for the testing. Since the obligation to provide evidence is the responsibility of the employee, it stands to reason that the employee must also bear the costs.

However, according to § 4 (1) Corona-ArbSchV, employers are still obliged to offer a free rapid antigen test twice per calendar week. This test must also be carried out using in-vitro diagnostics.

Employers who do not monitor the access requirements or do not monitor them properly may be fined up to EUR 25,000.00 (Section 73 (1a) No. 11d. IfSG).

4. Co-determination rights of employee representatives

There are various co-determination rights of an employee representative body represented in the company in connection with the necessary protective and hygiene measures as well as working from a home office. This applies in any case if and to the extent that the employer has leeway in the implementation of the statutory and regulatory requirements

5. Stricter measures in the federal states

The individual federal states can also decide on further restrictive measures.

Due to the sharp rise in Corona numbers and the high occupancy of intensive care units, the State of Bavaria had already introduced such more far-reaching measures before the new Infection Protection Act came into force. A brief overview of the new Bavarian regulations:

  • Lockdown for the unvaccinated:
    • Maximum of five unvaccinated persons from two households per meeting
    • Statewide 2G and 2G Plus expanded. For example, at the hairdresser or universities
  • Bars and clubs close
  • Christmas markets are cancelled
  • Closing time for gastronomy from 22 o’clock
  • Schools and daycare centers remain open
  • With incidence above 1000 general lockdown
    • Gastronomy, sports and cultural events as well as body-related services have to close down
    • Kitas, schools and trade remains open

The pandemic situation continues to worsen and further measures need to be taken to protect against the Corona virus.

In these times, it is particularly important for employers to protect the employees in the company as far as possible in order to keep the business running as smoothly as possible. Therefore, in addition to the new regulations on work from home and access requirements, hygiene concepts are also crucial.

The reintroduction of the work from home arrangement is intended to reduce personal contact at the workplace to a minimum. For all other employees and companies where such arrangement is not possible, the 3G concept applies.

The tightened access controls are designed to ensure that unvaccinated employees, in particular, are tested daily for the Corona virus to minimise the risk of it spreading in the workplace.

We will be happy to support you in the drafting of appropriate directives or if you have any questions regarding a specific case, and we will also keep you informed of further developments.

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