Stricter corona measures at work
From 24.11.2021, the 3G regulation at the workplace comes into force. But how must this be implemented in companies? Can employees even be asked about their vaccination status? And what if employees don't want to get tested? We'll let you know.
initial situation
Incidences and intensive care bed occupancy have risen sharply recently. In order to better protect employees, the Bundestag and Federal Council have Introduction of the 3G rule in the company Decided from 24.11.2021 (Wednesday). From then on, only those who have been vaccinated, tested or recovered against COVID-19 may come to work.
We are happy to advise you
What do you have to consider when querying the vaccination status? What does data protection require here? What should be done if employees refuse the 3G certificate? How do you create an “ad hoc solution” for working from home? We would be happy to answer these and other questions for you. Our employment law team provides you with full advice on all topics and the possible consequences for your individual case. We're here to help!
How is the 3G rule implemented in the company?
Employers are now required to verify the 3G rule. Otherwise, they may no longer allow their employees access to the workplace. That means: Before When entering the company, employees must prove that they have been vaccinated, recovered or tested negative for COVID-19.
According to the ministry, employees are responsible for ensuring that they can provide valid 3G certificates. Valid options are:
- Vaccination certificate or
- Convalescent certificate or
- daily test or
- PCR test (not older than 48 hours)
This inspection obligation exists every day and must be documented by employers. In addition, they must offer their employees at least two tests a week free of charge.
Which companies does the 3G rule apply to?
The new regulation only applies to employers who cannot rule out personal contact in their company. Employees working from home are therefore not affected.
Implementation issues
The Federal Data Protection Commissioner Ulrich Kelber considers some components of the regulation to be “faulty.” There is now an unnecessary risk of data protection errors. These may result in delays before courts. “This would massively damage the fight against the pandemic. ”
It is also unclear whether random samples from the tests are sufficient or whether every employee must be checked daily. The vaccination or recovery status can be saved for the period of validity. It is also disputed among data protection experts whether there is a general right to ask questions about vaccination or recovery status at the entrance to the company. This problem, which is already known, is not clarified in the new regulation.
Check vaccination status
On 19.10.2021, at DSK decided that employers should not send their employees according to their vaccination status be allowed to ask. With exceptions, companies are therefore generally prohibited from processing the vaccination status of their employees unless this has been expressly permitted by those affected. However, employers must require proof that one of the 3Gs has been met.
Voluntary consent
Employers may only process (i.e. save) the vaccination status of their employees if the latter voluntarily agree to it. Only then is she Legally valid consent given. However, doubts can quickly arise about voluntarism, as employers and employees are in a relationship of supremacy and subordination.
Exceptions when querying vaccination status
The general law that employers ask their employees about their vaccination status, record it and, if necessary, report it to the authorities applies only in specially protected medical and social institutions. These include, for example, hospitals, doctor's offices, care facilities, daycare centers, schools or homeless shelters.
Ambiguities in data protection
Since the question of vaccination or recovery status involves sensitive and personal employee data, the data protection requirements for storage also play a significant role: Particularly when working locations change, there is no clear regulation as to how employers can correctly implement the control obligation. If there is no vaccination or recovery status on file, it may be that either a request for the test result is sufficient or that employers must request digital proof.
- The Principle of “data minimization” provides for: If it is already sufficient to know whether employees have been vaccinated or not, it is not necessary to store this data. If the vaccination status does have to be saved, no copies of vaccination cards or comparable certificates (original or as a copy) may be included in the personal file. It is sufficient to note that each of these has been submitted.
When workers refuse to provide a 3G certificate
Employees who do not want to provide any information about their vaccination or recovery status must be treated as “unvaccinated”: They are also required to test. To do this, they can either take advantage of the free citizen tests or the company's test offers.
If employees refuse to carry out and prove a test or disclose their vaccination or recovery status, problems arise: Can employers dismiss their employee without notice in the event of a persistent refusal — as in the event of a refusal to work? This depends on the individual case, in particular on a warning that has been issued.
Workers are likely to receive at least no pay because — without sufficient apology — they do not perform any work. In this case, no work = no pay. Employers are faced with well-known questions, especially when the affected employees are indispensable. A flexible home office solution should then be sought as much as possible so that the work can still be performed. But the “ad hoc introduction” of working from home also requires well-thought-out employment contract regulation.
conclusion
The rules should help to curb the incidence of infection. However, due to the ambiguities, the new regulation is heavily criticized by industry associations. They are calling for a more extensive 2G regulation in order to curb these problems when implementing the control obligation.
