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WORKING IN GERMANY

Five things to know about Germany’s new workplace Covid rules

From Wednesday, employees in Germany are expected to carry proof of vaccination, recovery or a negative Covid test if they want to work on-site. Here's what you need to know about the forthcoming rules.

Covid rapid test at work
An employee checks the result of a rapid Covid test at work. Workplace 3G rules come into force in Germany on Wednesday. Photo: picture alliance/dpa | Matthias Balk

As part of its new package of measures to tackle Germany’s ever-rising Covid infection rates, ‘3G’ rules will come in at offices, factories and other working environments over the coming days.

That means that anyone who isn’t vaccinated or recently recovered from Covid will be required to show a negative rapid test taken no more than 24 hours ago, or a negative PCR test taken no more than 48 hours ago, to enter their place of work. 

Vaccinated people will of course be asked to show their vaccine certificate instead, while people who are recovered can show a positive PCR test taken at least 28 days ago, but no more than six months ago. 

The new changes are expected to come into force on Wednesday. Here are five key things to know about the rules before heading off to the office later this week. 

READ ALSO:

1. Home testing kits won’t cut it

According to advice issued by the Federal Ministry of Health, a negative test only counts for the 3G rule if it’s taken under supervision. That means that employees can use their regular tests at work or head to one of the rapid testing stations before work in order to get their test for the day, but they can’t rely on a stock of cheap home testing kits to get by.

Instead, you’ll likely have to make your own arrangements for seeking out an official test and ensuring it’s still valid at the start of your working hours.  

“Employees are obliged to take care of the test themselves,” Michael Witteler, partner at Pusch Wahlig Workplace Law (PWWL), told Handelsblatt. That means that the regular tests could become relatively time intensive if people are heading into the workplace several times a week.

Unfortunately, the time taken to go and get a test doesn’t count as part of your working hours – though employers may decide to grant employees a bit of additional time to do this at their discretion.

However, they don’t have a legal obligation to remunerate employees for the time spent taking the test, so it’s likely that unvaccinated employees will have to get used to slightly earlier mornings or getting tested in the evenings over the coming weeks.  

2. You can avoid 3G by working from home

For a large number of employees in Germany, there’s a fairly easy way out of mandatory testing or having to present proof of vaccination and recovery: staying at home and avoiding the workplace entirely.

In fact, according to the amended Infection Protection Act that was approved in the Bundesrat on Friday, employers must offer office workers the chance to work from home if there are no operational reasons against it. That means that many office jobs are likely to implement more flexible working arrangements, though in some sectors like manufacturing work, medicine or construction, working off-site may not be possible.

Man working from home
A man works from his dining table at home. People who don’t want to comply with 3G will be asked to work from home where possible. Photo: picture alliance/dpa | Finn Winkler

“In the current situation, employees are obligated to accept the offer to work from home,” Witteler told Handelsblatt. However, if employees feel that their home environment can’t be used as a home office – for example because of limited space or access to internet – they can legally turn down the offer. It all depends on how well you can make the case for the need to work on-site, though if you’re unable to carry out your work either at home or on site, there could be severe consequences. 

READ ALSO: Germany passes law reform for sweeping Covid measures

3. People who reject 3G could lose out on wages

While many people may be able to get out of daily tests by simply staying at home, there are likely to be issues for those who are unable to and who still refuse to take the test. 

If an employee comes into work and refuses to comply with the 3G rule, the employer must send them home, Tillmann Hecht, specialist lawyer and partner at Noerr in Frankfurt told Handelsblatt. 

If they then can’t work from home, there will be no entitlement to wages and salary, as the employees can’t carry out their duties due to the new regulation in the Infection Protection Act. “And then the principle applies: no work, no pay,” says Hecht.

As a worst-case scenario, employers may even be entitled to terminate a worker’s contract if they refuse to comply with the latest Covid measures.

In guidance issued by the Ministry of Labour, ministers state that employees who cannot or do not want to provide proof of 3G should “in principle fear consequences under the law of dismissal”. However, the principle of proportionality must be observed, and employers should bear in mind that the 3G regulations are set to expire on March 19th, 2022, when making a decision.

4. Employers are only allowed to store some of your data 

The introduction of 3G in the workplace takes employers into tricky legal territory, since generally they’re not allowed to specifically ask about, or store data on, their employees’ vaccination status. The only exceptions to this at the moment are at nurseries or care homes, where employers are legally entitled to enquire about whether employees are vaccinated.

Instead, employers will be able to ask for one of the three forms of proof required under 3G (proof of vaccination, recovery or a test) and then record the fact that proof was available on any given day. However, due to the principle of data minimisation, they should never record which one was shown, as this would allow people with access to the data to gain information on an employee’s medical history.

Stefan Brink
Baden-Württemberg data commissioner Stefan Brink claims that the 3G rules are too unclear to be properly implemented by employers. Photo: picture alliance/dpa | Sebastian Gollnow

Of course, it seems relatively unavoidable that employers will deduce that any workers who choose to show a test have not yet been vaccinated. According to Thomas Ubber, partner at Allen & Overy in Frankfurt, this could lead to discrimination against unvaccinated employees such as decisions to separate them from other staff or restrict their contact with customers. 

“Though the data collected may only be used for access control, cases of abuse cannot be completely ruled out,” Ubber told Handelsblatt.

Data protection experts have criticised the lack of clarity in the new rules, as well as the lack of time employers have been given to implement them. 

“The guidelines could have been clearer,” Stefan Brink, data protection commissioner of Baden-Württemberg, told DPA. Among other issues, it is unclear whether random spot checks or daily checks will be carried out, and whether employers are expected to ask for identification alongside proof of vaccination, recovery or the negative test.

5. At least three tests a week should be free 

For those worried about the financial consequences of getting daily tests, it’s important to note that nobody should have to bear the cost of a full five tests a week. In a recent U-turn on the decision to scrap free rapid tests, the government has now decided that everyone should be entitled to at least one free test a week.

READ ALSO: Germany set to bring back free Covid tests

In addition, all employers are expected to offer at least two weekly Covid tests to employees who are expected to work on-site. The costs of these tests should be borne by the company, and not the employees.

That means that for most people, at least three free tests should be available each week. If the option is available to them, unvaccinated people could come to an agreement with their employers to work from home for the other two days, or simply pay for the additional tests themselves. 

Of course, some employers may try to make things simpler by offering daily free rapid tests, so it’s worth checking what your company’s policy will be once the new rules come in. 

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COVID-19 RULES

Bavaria signals end to compulsory masks on public transport

Bavaria's state premier Markus Söder (CSU) has announced plans for a "prompt" end to mandatory masks on buses and trains.

Bavaria signals end to compulsory masks on public transport

If infection levels and hospitalisations remain low, the end of the mask-wearing rule could come as soon as December or January.

“We are convinced that the mask requirement in public transport could also be phased out either in mid-December or early next year, if the numbers remain reasonably stable and there are no new mutations,” Söder explained on Monday, following a meeting with the CSU executive committee. 

A decision on when to end the measure would be made “promptly”, he added.

The CSU politician had said last week that the sinking infection rates meant that compulsory masks were no longer appropriate and that the mandate could be changed to a recommendation. 

No set date for change

The latest version of Bavaria’s Infection Protection Act – which lays out an obligation to wear masks on public transport as one of the few remaining Covid rules – is currently due to expire on December 9th.

State ministers could decide whether to let obligatory masks on buses and trains lapse on this date as early as next week, or they could decide to initially extend the legislation and set an alternative date for ending the rule.

Regardless of their decision, FFP2 masks will continue to be mandatory on long-distance public transport until at least April next year, when the nationwide Infection Protection Act is due to expire.

READ ALSO: KEY POINTS: Germany’s new Covid-19 rules from October

Speaking to Süddeutsche Zeitung on Monday after the meeting of the Council of Ministers, Florian Herrmann (CSU), head of the State Chancellery, confirmed that Covid-19 had been discussed in passing.

However, no decisions or discussions were made on how to proceed after the expiry of the regulation, he said.

According to Herrmann, the fact that Covid was no longer the “dominant topic” in the cabinet under “enormous tension” shows “that we are returning to normality” in a gradual transition from pandemic to endemic. 

As of Wednesday, the 7-day incidence of Covid infections per 100,000 people stood at 108 in Bavaria, down from 111 the previous day. However, experts have cast doubt on how meaningful the incidence is in light of the fact that fewer people are taking tests.

Nevertheless, the 133 hospital beds occupied by Covid patients in the Free State falls well below the 600 threshold for a ‘red alert’. With Omicron causing less severe courses of illness than previous variants, politicians have increasingly focussed on hospitalisation statistics to gauge the severity of the situation.

‘A risk-benefit trade-off’

Bavaria is the second federal state to announce plans to relax its mask-wearing rules in recent weeks.

On November 14th, the northern state of Schleswig-Holstein announced that it would be ending obligatory FFP2 masks on public transport and urged other states to do the same. From January 2023, masks on public transport will only be recommended rather than mandated for passengers on local buses and trains. 

However, the Federal Ministry of Health has urged states not to loosen their rules too quickly.

Given that infection rates are likely to spike again in winter, “there’s no basis for loosening restrictions”, said Health Minister Karl Lauterbach (SPD).

Physicians are also split on whether an end to masks on public transport is appropriate.

READ ALSO: Will Germany get rid of masks on public transport?

Health Minister Karl Lauterbach

Health Minister Karl Lauterbach (SPD) speaks at the German Hospital Day in Düsseldorf on November 14th. Lauterbach is against the lifting of the mask-wearing rule. Photo: picture alliance/dpa | Roberto Pfeil

Christoph Spinner, a virologist at the University Hospital in Munich, told Süddeutsche Zeitung he believed it was time to put the decision on mask-wearing back into the hands of individuals.

“Why not? The incidences are low, the danger of Covid-19 has dropped significantly and mortality has also decreased,” he said. 

But the Bavarian General Practitioners’ Association spoke out against the move, arguing that – unlike a trip to a restaurant or cinema – people often have no choice but to travel on public transport.

“If the obligation to wear a mask in public transport is maintained, this will help to protect against a Covid infection on the way to work by bus or train – especially in view of the discontinuation of the obligation to isolate in the event of a Covid infection,” they explained.

Bavaria is one of four states to have recently ended mandatory isolation for people who test positive for Covid. Baden-Württemberg and Schleswig-Holstein both scrapped their isolation mandate last week, while Hesse removed its obligation on Tuesday. 

READ ALSO: Four German states call for end to mandatory Covid isolation

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