Changes to the Infection Protection Act and the Covid-19 Workplace Protection Ordinance: Waiver of 3G rules in the workplace and the obligation to work from home
As of 20 March 2022, the previously applicable Covid-19 Workplace Protection Ordinance (SARS-CoV-2--Arbeitsschutzverordnung, Corona-ArbSchV) of 25 June 2021 has been replaced by an amended version. This results in widespread relaxation of the previously applicable regulations and contains only minimal provisions regarding infection control in the workplace. The changes came into force on 20 March 2022 and apply until 25 May 2022 inclusive. Likewise a number of regulations in the Infection Protection Act (Infektionsschutzgesetz, IfSG) lapse with effect from 20 March 2022, which results in the removal of the previously applicable 3G rules in the workplace and the obligation to work from home.
The following short overview summarises matters employers and employees should be aware of from now on:
1. 3G rules and obligation to work from home no longer apply
The changes to the IfSG in section 28b (1) and (3) IfSG as amended result in the complete removal of the measures to enforce 3G rules in the workplace without replacement.
Conversely, workers in the healthcare sector in certain institutions must be vaccinated since 15 March as per section 20a IfSG.
Due to the lapse of section 28b (4) IfSG as amended with no measures replacing it, the previous obligation to offer employees the opportunity to work from home no longer applies.
However, mobile working will remain an integral part of working life despite expiry of the obligation to work from home. In future, legislators may introduce a right to work from home for certain occupational groups. The current coalition agreement states that “employees in suitable professions will receive the right to discuss the option of mobile working and working from home. Employers may then only object to the employee’s wishes if there are operational issues opposed to this. This means that a request may not be rejected for irrelevant or arbitrary reasons. Scope must remain for deviating regulations in collective agreements and company guidelines. Mobile working should be possible EU-wide without problems.” The endeavours of the governing parties therefore show that employers should also adapt to mobile work and working from home in the future.
2. Corona-ArbSchV: basic protection measures for the prevention of infection in the workplace
The new Covid-19 Workplace Protection Ordinance (SARS-CoV-2--Arbeitsschutzverordnung, Corona-ArbSchV) now only provides for basic protection measures in the workplace. These basic protection measures should be defined by employers in their occupational protection and hygiene concepts based on their own risk assessment. As part of the risk assessment employers should check whether and what measures are required in order to guarantee the health & safety of their employees in the workplace. Regional infection rates and the risk of infection for specific occupations should be taken into consideration here.
No obligation to provide or obtain evidence or implement control measures any more, except in the healthcare sector
Employees no longer have to provide evidence of whether they are vaccinated, tested or recovered. The corresponding previous obligation of employers to monitor and document the evidence has also lapsed. Evidence stored by employers should in principle now be erased, unless there is a statutory legal basis to continue on data protection grounds.
Employees working in healthcare sector institutions listed in section 20a IfSG still have to produce evidence of vaccination or recovery. If corresponding evidence is not produced or if the employer has legitimate reasons to doubt the authenticity or the accuracy of the evidence provided, they are obligated to inform the responsible health authority and to transfer the employee's personal data. If the employer does not comply with this obligation, this constitutes an administrative offence under section 73 (1) 7e (2) IfSG which may be punishable with a fine.
Employees’ obligation to return to the workplace
In principle, employers may also now demand that their employees return to the workplace. If an employee refuses to return to the office without authorisation, in individual cases this may justify consequences ranging from a warning to termination due to conduct. Other conditions may apply, however, if company guidelines or the provisions of the employee's employment contract allow for working from home. Employers should agree appropriate employment law provisions either with individual employees or by implementing a solution at business unit level by concluding a Works Agreement if they wish to offer their employees the opportunity to work from home or mobile working in the future. This is an area where it is becoming increasingly important to provide a clear and secure legal foundation for the parties to the employment contract through appropriate agreements.
Employer risk assessment and workplace hygiene policy
Employers should lastly draw up and implement a workplace hygiene policy containing the measures required to protect against infection in the workplace based on a risk assessment. This hygiene policy must be made accessible to employees in the workplace in a suitable manner.
Potential measures include:
- Offering employees who do not exclusively work from home the opportunity to take a free, commercial Covid-19 test on a weekly basis;
- Avoiding contact in the workplace, in particular by avoiding or reducing the simultaneous use of interior rooms by multiple people. Employers should assess here, in particular, whether office work or comparable work can be done from home;
- Providing medical face masks (mouth & nose protection) or those more precisely referred to in the Annex to the Ordinance as respiratory protective devices.
Employers should also enable employees to be vaccinated against Covid-19 during working hours. They can organise and provide protective vaccinations carried out in the workplace by company doctors and inter-company services on grounds of protecting the population and provide staff to support this. Employees should receive training explaining the health hazards of contracting Covid-19 and be provided information about receiving preventative vaccinations.
Author: Timo Rehfisch