What Now Changes for Employers With "3G" in the Workplace

Orrick, Herrington & Sutcliffe LLP

Now things are to move quickly. After the prevailing legal view was that most German employers outside the medical and nursing professions could not even ask about their employee's vaccination status, the three political parties of the nascent new coalition are planning to introduce the so called "3G rule" in the workplace as a reaction to sharply rising infection rates and intensive care units filling up. The parties also plan to reintroduce the general home office obligation. In both cases, both employers and employees will be required to comply with the 3G rule and the home office obligation.

The Bundestag has already given its approval on November 18, 2021, and the Bundesrat is expected to give its approval on November 19, 2021.

Our answers to key questions from employers:

  1. What is the most important new regulation?

    Employees should only be allowed to enter the workplace if they comply with the 3G rule.

  2. What exactly does 3G mean?

    • Recovered (Genesen) means sick with Covid in the last six months.
    • Vaccinated (Geimpft) still means two vaccinations (one from Johnson & Johnson), booster vaccination not yet mandated.
    • Tested (Getestet) means PCR within 48 hours, rapid test (under official supervision) within 24 hours. Exception: testing at employer's site itself by provided tests.
  3. From when should it apply?

    The law can enter into force on November 20, 2021 at the earliest if the Bundesrat approves the law on November 19, 2021.

  4. To which employers does it apply?

    The new rules should apply to all employers with workplaces where physical contact between employers and employees or with third parties cannot be ruled out.

  5. Does the employer have to check for compliance?

    Employee must now show proof of vaccination, recovery or testing. Employer must check this daily and document the checks accordingly.

  6. What are the consequences for violations?

    Employees who falsify test results can be sentenced up to one year in prison. Employers who fail to carry out checks face fines of up to EUR 25,000.

  7. Can employers store data?

    Data of vaccination or recovery status may be stored for six months even without consent in compliance with data protection laws.

  8. What else is new?

    • The employer must again offer home office (as in the spring of 2021), unless there are compelling reasons not to do so. The employee should accept it.
    • The employer must still offer testing twice a week at his own expense. However, this does not apply to the vaccinated and recovered employees
  9. At last: What's the way to go to ensure compliance for the first few weeks?

    • Home-Office where possible.
    • Ask and store data of vaccinated or recovered employees.
    • Require employees that are not vaccinated or recovered to submit daily test per e-mail or secure online tool. Daily spot checks if test results of such employees are submitted.
    • At least weekly spot checks of legitimacy of test results.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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