As the number of COVID-19 infections is significantly increasing in Germany once again, the legal requirements to be observed by employers and employees at the workplace are changing. Depending on the situation of the pandemic, different regulations still apply in the various federal states. Changes to the existing rules are often introduced quickly and with high frequency (for example, in Bavaria, the requirements for employees in the gastronomic sector have changed substantially several times over the past two weeks).
Bavaria has recently tightened COVID-19 regulations in the workplace. Only vaccinated, recuperated or employees with negative test results are allowed to work in the employer’s establishment. Employees who have not been vaccinated or have not recovered from a COVID-19 infection must be tested twice a week, with a rapid test or supervised self-test, in order to be allowed in the office. All companies with more than 10 employees are impacted by these regulations, where employees have contact with other people (whether customers or colleagues). Exceptions are only made for retail and public transport. For employees in the gastronomic and hospitality sector, the rules are even more strict. Employees in these sectors who are neither vaccinated, nor recovered, must present a negative PCR test twice a week or a negative rapid test/supervised self-test on every working day.
Employers are responsible for checking vaccination, recovery and test certificates. However, employees are not obligated to provide information on their vaccination/recovery status. Employees who refuse to provide such information are to be treated as ‘not vaccinated’ and ‘not recovered’, i.e. they have to comply with testing rules. Employees who refuse to provide proof of vaccination, recovery or negative tests must not be granted access to the workplace. If they are not able to work from home, employers can generally refuse payment of remuneration for the relevant time period, although there is no case law yet on this specific topic.
Employers are currently required to offer COVID-19 tests to all employees twice a week. The costs for these tests are to be borne by the employer. Where additional tests are required due to local rules (e.g. in the gastronomic sector in some federal states), it is currently unclear who has to bear the costs.
It is rather likely that other federal states will soon follow the example of Bavaria. The German government has already announced its intention to implement a similar model, which would mean that vaccination, recovery or frequent tests may soon be required at workplaces throughout Germany. The feasibility and numerous follow-up questions related to such a model are currently still being examined.
In addition, the Coronavirus occupational health and safety rules established by the Federal Ministry of Labour and Social Affairs, which specify a variety of COVID-19-related protective measures for the workplace, are set to expire at the end of November 2021. However, with regard to the current development, it is very likely that the regulation will be prolonged and possibly the applicable measures will be extended.
Key Action Points for Human Resources and In-house Counsel
- In Bavaria, only vaccinated, recuperated or employees with negative test results are allowed to attend the workplace. There is a high likelihood that this regulation will soon be introduced for all of Germany.
- The situation with regard to COVID-19 workplace protection measures remains extremely dynamic for employers. Employers can only be advised to keep abreast of the potential changes to the applicable regulations.