The new infection control law incl. home office

BDA AGENDA 27/21 | Topic of the Week | 24 November 2021

It is welcome that it has now been clarified that the employer can require proof of the status of an employee. The application of the new 3G regulations poses major challenges for employers. The introduction of the home office obligation revives old conflicts.

Against the background of the worsening incidence of infections, the Infection Protection Act has been revised. Of particular importance for employers is the introduction of a new 3G rule at the workplace (Section 28b (1) IfSG). By 19 March 2022, only those who have been vaccinated, recovered or tested and who carry the relevant evidence with them, keep it available for inspection or leave it with the employer may enter the workplace. This creates an access requirement wherever physical contact is possible, the fulfilment of which is the responsibility of the employee.

The employer is not obliged to provide the corresponding testing facilities. However, the employer is obliged to offer tests in accordance with the Corona Occupational Health and Safety Ordinance. Self-testing thus remains permissible without supervision. The employee must procure much more - based on a five-day week - five test proofs himself. If, on the other hand, the employer offers two supervised tests in the company, the employee must obtain three test certificates himself. Testing time is not work time and must occur before the employee begins work. Irrespective of the type of test, which is to provide access, this must be effected before commencement of work in such a timely manner that the work processes are not disrupted. To this end, it is also conceivable to have the test carried out the evening before. Such a test has a validity of 24 hours, a PCR of 48.

The new 3G rule requires employers to carry out daily monitoring and regular documentation. It is useful that for this purpose, it has now been confirmed by law that the data on vaccination, convalescent and testing status may be processed. If the employer knows the vaccination or convalescent status of its employees, simplified access controls (so-called "fast lines") are possible for vaccinated or convalescent employees. Once vaccination or convalescence data has been collected, it may be used - insofar and as long as this is necessary for health protection in the company, for example in the ongoing adaptation of company hygiene concepts. It may be stored for up to six months.

It is unclear what contribution the reintroduction of the home office obligation will make to sustainable infection protection (Section 28b (4) IfSG). Employers have always offered their employees mobile work wherever possible. The regulation may encourage a division of workforces. It is not understandable why there is a need for a new legal obligation. Such a duty does not provide an incentive to vaccinate. It is precisely those who refuse vaccination who may feel encouraged to make use of it.