COVID-19 regulations in the workplace: What changes on 20 March 2022?

A new version of the SARS-CoV-2 Occupational Safety and Health Ordinance has now been adopted and changes to the German Protection against Infection Act have passed the Parliament (Bundestag) and Federal Council (Bundesrat) on Friday, March 18, 2022. In this article, we would like to inform you about the planned changes related to German workplaces taking effect after March 19 2022.

1. SARS-CoV-2 Ordinance on Occupational Safety and Health as of March 20 2022

Changes to the Ordinance will loosen the current strict requirements while continuing the basic control measures designed to prevent infection in the workplace. Over the period of several weeks, the Federal Ministry of Labour and Social Affairs (BMAS) prepared several draft proposals for this. The latest draft, dated March 11 2022, was then adopted by the Federal Government on March 16 2022. As of March, 20 2022, new guidelines for "Basic Protection Measures for Occupational Infection Control" will apply. The revised COVID-19 Occupational Safety and Health Ordinance will remain in force until May 25 2022.

This revised ordinance focuses on having companies enforce protection measures adapted to their own operational needs and the COVID-19 incidence situation in their region. However, many of the current COVID-19 Occupational Safety and Health Ordinance regulations remain in force. In particular:

• Employers are still required to implement a company-wide COVID-19 hygiene plan based on health risk assessments (Sections 5, 6 of the German Occupational Safety and Health Act, or “ArbSchG”). This company-wide COVID-19 health plan must define and implement the protective measures required to prevent infection in the workplace.
• The status of the employees as either vaccinated or recovered can now no longer be considered when defining and implementing the company-wide COVID-19 health plan. Employers cannot take into account an employee's vaccination or recovery status any longer (if known). Such information must be deleted by March 20 2022 at the latest for data protection reasons, as employers will no longer have any legal right to retain such information.
• When assessing the health risks in the workplaces, employers must consider the region’s infection situation and the infection risks associated with specific work-related activities.
• Employers must carefully consider ways of minimising work-related contact with others when assessing the work-related health risks. There is no longer any obligation to require employees to work from home to reduce physical contact. The requirement that employers give employees the option of working from home is no longer mandatory. Employers are only required to check whether working from home is pragmatic and necessary for reducing workplace-related physical contact.
• In assessing work-related health risks, employers are also required to check whether the company-wide COVID-19 hygiene plan should include a requirement that masks be worn in the workplace. Employers, therefore, have some leeway in their decisions for ensuring protection and the corresponding authority to enforce these decisions.
• The company-wide COVID-19 hygiene plan must be made accessible to every employee in the workplace in a suitable manner.
• The employers' offer of COVID-19 tests to employees may now be reduced from twice to once per calendar week. Although employees are not obligated to be tested, employers are obligated to offer the tests.
• Employers are no longer required to provide proof and keep records of the tests and test results.
• Employees must still be offered the opportunity to get a COVID vaccination during work hours.

2. Working from home after March 19 2022

The previous requirement that employers must offer their employees the opportunity to work from home (if this was feasible and there were no urgent operational reasons for not doing so) will no longer apply after March 19 2022. Also, Section 28b para. 4 of German Protection against Infection Act (IfSG) is no longer applicable. Employers are no longer required to offer their employees the opportunity to work from home as of March 20 2022. The newly revised COVID-19 Occupational Safety and Health Ordinance only requires employers to evaluate whether working from home office would be possible in order to minimise physical contact.

Employers can now require employees to return to working in the office. Unless the employer has promised an employee the opportunity to work from home independent of the requirements outlined in the COVID-19 Occupational Safety and Health Ordinance , the employer is entitled to reasonable discretion in defining where the work must be performed. The interests of both parties, however, must be balanced in such that any discretionary decision by the employer is deemed to be justifiable, given the facts.

Conversely, just as before, there is no regulation that allows an employer to unilaterally require an employee to work from home. The general view is that an employer cannot institute a policy requiring an employee to work from home. This is also the case if, when assessing the health risks and developing the company-wide COVID-19 hygiene plan, the employer determines that it would help reduce the risk of infection if (some of) the employees working from home would continue to do so.

If employers want to allow employees to continue working from home after March 20 2022, they should implement an agreement or policy regulating all the terms and conditions associated with working from home or working remotely. The co-determination rights of works councils (if any) must be taken into account. In addition to the usual policy regulations like work hours, availability of the employee, time-record-keeping and other documentation obligations, expense reimbursement, occupational safety and health, and data protection, employers should also regulate how and when the employee's right to work from home or work remotely might end. In particular, these policies should outline the employer’s right to revoke the employee’s ability to work from home or remotely, and how much advance notice is required for such a change.

3. Germany’s “3G” (vaccinated, recovered, or tested) regulation as it applies at the workplace after March 19 2022

On Friday, March 18 2022, German legislator has finally issued a decision on changes to German Protection against Infection Act (IfSG) and thus also the “3G” regulation as it applies at the workplace. This completely eliminates the “3G” regulation at the workplace without offering a replacement. The corresponding regulations in Section 28b of German Protection against Infection Act will be eliminated without being replaced. The following have been eliminated:

• The general “3G” regulation at the workplace
• The COVID-19 test requirement for health care workers
• The daily verification check and record-keeping obligation by the employer

With the elimination of these governmental regulations, the question arises as to whether employers can voluntarily continue complying with these now-abolished regulations. Whether employers can unilaterally require compliance with these measures after March 20 2022 is no longer regulated by law. The requirements outlined in the COVID-19 Occupational Safety and Health Ordinance are decisive, and these mandate that employers

• As part of a health risk assessment, take into account the regional infection situation and the infection risks associated with the specific operational activities
• Define and implement the necessary protective measures defined in their company-wide COVID-19 hygiene plan.

If an employer concludes that its duty to protect its employees takes precedence and that without COVID-19 testing (or a “3G” regulation) it will have difficulty controlling the virus’ spread in the workplace, the employer has the authority to require COVID-19 testing (or compliance with the 3G regulation). The employee’s rights (the right to privacy, physical integrity, right to protection of personal data) must be carefully considered by the employer when weighing the alternatives.

In the absence of clear statutory regulations, employers should tread carefully when asking an employee if they have been vaccinated or have recovered from COVID-19. The prevailing legal opinion is that an employer should not be allowed to question an employee as to their status as vaccinated or recovered.

4. Regulations regarding short-time work

For the sake of completeness, it should be noted that the existing special regulations regarding short-time work have been extended again with a few exceptions and are now in effect until June 30 2022. This extends the maximum duration for receiving a short-time working allowance (KUG), a form of partial unemployment benefits, to 28 months. Employees who have been working short-time since March 2020 can now obtain this short-time working allowance (KUG) until the end of June 2022.

Furthermore, the less stringent requirements for receiving this allowance and the increases remain in force:

• Instead of the requirement that one-third of the employees in the relevant business unit or a business unit department must be affected, now only a minimum of 10% of the employees must be affected by a (minimum 10%) pay reduction.
• As before, negative balances in an employee's working time account do not need to be balanced out.
• Additional earnings from a so-called ‘mini-job’ (minor employment, 450 EUR job) will not affect the right to receive the short-time working allowance (KUG).
• The increased benefit rates for long-term short-time work have been extended (70% or 77% from the fourth reference month and 80% or 87% from the seventh reference month respectively). The right to claim the increased benefit rates applies to all employees who have been (for the first time) on short-time work since April 2021.

However, the following changes have been made:

• Temporary workers are no longer eligible for short-time working allowances (KUG) beginning April 1 2022.
• The lump-sum reimbursement of social security contributions, which is currently 50%, will cease on April 1 2022. The employers are then solely responsible for paying the overall social security contribution. Exception: If the short-time work is linked to workplace training (considering certain legal requirements), then a 50% reimbursement takes effect again.

The new regulations will redefine the requirements for employers and employees for a manageable period of about two months. Employers must therefore carefully monitor and evaluate any new developments continually.

Do you have any questions about the new regulations taking effect after March 19 2022?

Please contact us