The new year has already begun and as usual, it brings about various changes in German employment law: some have already been implemented with effect as of 1 January 2022, while others will follow as the year progresses and some are only being discussed. We have summarised the most important changes in German employment law for employers in 2022.
Gradual increase of the statutory minimum wage
With effect as of 1 January 2022, the statutory minimum wage has been increased to 9.82 Euros gross per hour. In another step, the minimum wage will further increase to 10.45 Euros gross per hour as of 1 July 2022. Furthermore, as per the coalition agreement of the new German government, the minimum wage shall be raised to 12 Euros gross per hour. However, it is not clear yet when this will be implemented and if there may be legal complications on the way, as the employer associations claim an increase of the minimum wage directly by the government interferes with the autonomy of the employers and unions who negotiate collective bargaining agreements in various industries and with the work of the minimum wage commission that usually decides on minimum wage increases.
Exceptional rules on short-time work apply until the end of March 2022
At the beginning of the year, many employers (still) have to make use of short-time work due to the pandemic. In light of this, the exceptional rules on short-time work, that have been in place since the beginning of the pandemic, continue to apply in the new year. However, according to the current legal situation, this will only be the case until 31 March 2022. Until then, employers can benefit from a maximum period of 24 months of short-time work. Furthermore, the increased rates for short-time work allowance and the easier access to short-time work allowance continue to apply, so that short-time work can be used in any department or establishment where at least 10% of the workforce is affected by a loss of work of at least 10%.
Implementation of a facility-related vaccination requirement
In December 2021, the German legislator passed a facility-related vaccination requirement. Employees in healthcare and nursing facilities must prove by 15 March 2022 that they have been vaccinated, recovered or cannot be vaccinated for medical reasons. This applies to hospitals, nursing homes and doctor’s offices. Employees are not permitted to work beyond 15 March 2022 without submitting the appropriate proof. Employers must contact the health authorities if the proof is not submitted or if there are any doubts about the authenticity or correctness of the proof submitted.
Electronic unemployment registration
In small steps the German legislator continues to push forward digitalisation in employment law in 2022. The new regulation on electronic unemployment registration has been in force since 1 January 2022, allowing for the use of a legally secure electronic form for unemployment registration in addition to the face-to-face interview at the unemployment agency.
Electronic certificate of incapacity for work as of July 2022
Since physicians are already required to record data on incapacity for work electronically and to transmit this data to the health insurance fund of the employee, the health insurance funds must enable employers to obtain an electronic certificate of incapacity for work from 1 July 2022. The health insurance funds will provide the name of the employee, the beginning and end of the medically certified incapacity for work, the date of issue and the initial or follow-up notification in electronic form for download. Certificates of incapacity for work can then only be accessed online from the health insurance fund. The currently used proof of incapacity for work in paper form will (then) only be issued for the employee’s personal records. Employees will no longer have to submit this paperwork to the employer, but will only have to notify the employer immediately about their incapacity for work and the expected duration of their absence.
Compulsory employer contribution for deferred compensation
As of the beginning of 2022, employers who convert employees’ remuneration via pension funds and save social security contributions by that must pay an additional employer contribution in accordance with the German Occupational Pensions Act. This amounts to 15 % of the converted remuneration. Instead, employers can determine the social security contributions actually saved and pass them on to the pension fund. Previously, this contribution had only been compulsory for new deferred compensation commitments given as of 1 January 2019, but now has been extended to any deferred compensation agreement. Deviating agreements to the detriment of employees are possible only within the framework of collective bargaining agreements.
Simplifications of status determining procedures
With effect as of 1 April 2022 some changes with regard to social security status determining procedures will be implemented. This procedure concerns the question whether a person is an employee in terms of social security and hence subject to compulsory social security contributions to be withheld by the employer or whether the person is self-employed. As per the new rules, this can already be determined even before the concrete activity is taken up, by way of a prognosis. Additionally, the possibility of group proceedings will be introduced in order to prevent divergent decisions in equivalent cases. For constellations with the involvement of three parties, i.e. when using external staff, it will be possible to assess the legal situation in one joint proceeding rather than in two separate ones.
Key Action Points for Human Resources and In-house Counsel
- Minimum wage increases, a facility-related vaccination requirement, electronic certificates in case of employees’ incapacity for work and additional contributions to pension funds affect employers in 2022, among other matters.
- Further changes with considerable practical impact are to be expected, in particular with regard to working time and mobile work.