3G at work, testing, home office – what applies?

New regulations for employers and employees

The number of people infected with Corona in Germany has risen rapidly again within the last few weeks and is causing new record figures in the negative sense. For the first time, the so-called 7-day incidence of 400 new infections per 100,000 inhabitants was exceeded on a national average.

Against the background of an imminent collapse of the health system, the new federal government consisting of the SPD, the Greens and the FDP as well as the Bundesrat decided on a far-reaching package of measures. This came into force on 24 November 2021 and also provides for considerable changes in the operating procedure for employers

3G (vaccinated, recovered, tested) – what do employers and employees have to consider now?

Vaccinated, recovered, tested: 3G at the workplace is mandatory

Employers and employees must carry proof of vaccination or convalescence or a current certificate of a negative Corona test when entering the workplace, unless physical contact cannot be ruled out in the workplace. An antigen test must not be more than 24 hours old at the time of entry into work; for PCR tests this is 48 hours. Self-testing at home is not sufficient, but self-testing can be done on site under authorised supervision.

How is 3G proof checked?

Once the employer has checked the proof of vaccination or convalescence and documented this check, employees with valid proof can in principle be exempted from daily access checks thereafter. However, employees are required to provide appropriate proof of vaccination or convalescence in the event of official checks. This can be ensured by permanent deposit with the employer.

The employer is obliged to monitor and document compliance with these requirements on a daily basis through verification checks, unless the proof of vaccination or convalescence has been deposited with or documented by the employer. Employees’ personal data may be processed and stored by way of exception. The data must be deleted after 6 months at the latest. The employer is also obliged to provide the competent authorities, in particular the health authorities, with information on the documentation carried out, if required.

What happens to employees who refuse to bring 3G proof?

The employer must refuse to allow employees to enter the premises if they refuse to provide proof of 3G when they start work. Otherwise he violates his duty of supervision.

The employee then fails to offer his or her work performance properly and the employer is not obliged to pay the wage for this period. If the employee persistently refuses, the employer can draw consequences under labour law and issue a warning or, in case of repetition, possibly even dismissal.

In any case, both the employer and the employee face fines of up to a maximum of 25,000 euros for violations of monitoring or carrying obligations.

Are employees entitled to work at home?  

No, there is no general right to home office. The employer is obliged to offer home office, but only if there are no compelling operational reasons to the contrary. Since home office workplaces do not constitute workplaces in the sense mentioned above, employees who work exclusively from home are not subject to any corresponding 3G verification obligations.

Are employees entitled to tests at the employer’s premises?

Unvaccinated or non-recovered persons are obliged by law to ensure themselves that they can present an appropriate test each day when they start work. The free citizenship tests are still available for this purpose.

The employer can also offer supervised on-site testing by trained personnel for these persons and must also grant access to previously untested persons for this purpose. However, this measure is not obligatory for the employer.
However, for reasons of occupational health protection, the employer must continue to offer every employee at least two Corona tests (PCR test or professionally or self-applied rapid antigen tests) per week. This applies regardless of vaccination or recovery status.

Does the employer have to continue paying wages to employees in quarantine?

For employees who have to be quarantined due to a positive test result or because they are considered close contacts, the employer can make a distinction.

• For vaccinated or recovered persons, the employer must in principle continue to pay the salary. He can then have the money for this period reimbursed by the state.
• If the employee is neither vaccinated nor recovered, the employer is no longer obliged to continue to pay wages during the quarantine period as of 1 November 2021.