Germany Imposes New Workplace Restrictions as Coronavirus Surges

By Dinah Wisenberg Brin December 9, 2021
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Berliin

​Facing a new coronavirus surge, Germany recently implemented significant pandemic-related restrictions affecting workplaces nationwide.

Notably, as of Nov. 24, employees may enter their workplaces only if they show so-called 3G certification that they're vaccinated against COVID-19, have tested negative or have recovered from the coronavirus.

German lawmakers also established a new work-from-home obligation requiring employers to offer employees that option if the nature of the work allows. The employee must accept the work-from-home option unless there's a clear reason not to work remotely.

Both requirements expire March 19, 2022, with an extension beyond that date possible.

Unvaccinated employees without proof of recovery must take an approved test every workday in their free time and show the employer the negative certificate obtained in the testing center, according to Christian Maron and Johannes Höft, attorneys with Taylor Wessing in Munich and Hamburg, respectively.

This increases the pressure on unvaccinated employees, as work (with the exception of working from home) is now permitted only if the 3G requirements are met, and unvaccinated employees may have to pay for the daily required tests themselves, Maron and Höft said via e-mail.

Vaccinated, Recovered or Tested

Employers don't have to provide unvaccinated employees with testing in the workplace but can refer them to official testing centers under the new rules, Maron and Höft said.

Employees who don't provide proof of vaccination or recovery must show evidence of a negative rapid test taken within the previous 24 hours or a polymerase chain reaction test within the past 48 hours, according to legal experts.

Employers must monitor compliance with the 3G requirements or face up to EUR 25,000 (approximately 28,112 USD) in fines under the new regulations.

Despite the new rules, employers cannot mandate employee vaccination, as there's no such requirement yet in Germany, according to Maron and Höft.

Sixty-eight percent of Germany's population has undergone at least two COVID-19 vaccinations, Deutsche Welle reported last month.

Legal experts suggest that workers who refuse to comply with the new rules and can't work from home could face dismissal or have their pay withheld.

Under the 3G requirements, employers must request relevant personal health data to ensure compliance and protect the information from unauthorized individuals, according to experts, who noted that employers may keep the data for six months.

As for the work-from-home provision, employers that want employees to remain in the office should document reasons why this is necessary, such as the need to process incoming mail, according to Maron and Höft.

Vaccine Incentives Possible

The 3G workplace requirements may diminish any impetus for employers to offer COVID-19 vaccination incentives to workers, but such rewards remain an option—though they could face legal challenges from employees who are unvaccinated.

Section 612a of the German Civil Code includes the principle of equal treatment under labor law. Unvaccinated employees might make claims that vaccine bonuses violate the principle, although legal experts suggested employers can justify COVID-19 vaccine incentive programs.

Gerlind Wisskirchen, an attorney with CMS Germany in Cologne, said it's not illegal to offer a vaccination incentive.

Employers wishing to do so while observing the equal treatment principle might consider setting a target vaccination rate for the workforce by a certain date. Once that level is reached, they might award an incentive—additional vacation days, shopping vouchers or a special payment—to all employees who prove their vaccination status by the deadline, including those inoculated before the company announced the reward, Wisskirchen said.

The reward shouldn't be too high, as it might therefore be considered compulsory to get vaccinated, she added.

It's essential that employers respect the principle of equal treatment, including offering the reward to part-time and temporary employees, Wisskirchen said, as well as respect the ban on discrimination by not attempting to implement compulsory vaccination.

Maron and Höft suggested a company vaccination quota, such as a 90 percent rate, that would, if reached, result in a reward for all employees. "There is no disadvantage, because if the quota is met, every employee receives the premium, even if they themselves have not been vaccinated. At the same time, this can create a certain 'peer pressure' in the workforce," they said.

In principle, Maron and Höft added, any incentive, including a cash reward, is possible.

"In no case does different treatment between vaccinated and unvaccinated employees constitute discrimination," they said. "Unvaccinated is not a prohibited characteristic for different treatment."

Works councils have a right of co-determination in designing any bonus program the employer implements, Maron and Höft noted, but it's up to the company to decide whether to establish one.

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.

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