Compulsory requirements of German employers for COVID-19 testing and telecommuting | Ogletree, Deakins, Nash, Smoak and Stewart, PC

The dynamic development of the COVID-19 pandemic has spawned a number of new regulations. On April 20, 2021, the second amendment to the SARS-CoV-2 Occupational Health and Safety Regulation (SARS-CoV-2-Arbeitsschutzverordnung) went into effect, requiring employers across the country to offer employees who don’t work exclusively from home COVID-19 tests at least once a week. The regulations also require employers to offer employees at increased risk of infection the opportunity to be tested for COVID-19 twice a week. In addition, the regulation requires employers to keep proof of acquisition of COVID-19 tests or agreements with third parties regarding the tests for a period of four weeks.

On April 23, 2021, the third amendment to the SARS-CoV-2 Occupational Health and Safety Regulations came into force. As a result, employers are required to offer their employees the COVID-19 test twice a week. The regulation eliminates the requirement to offer additional testing to employees at increased risk of infection. Employers’ record keeping obligations continue to apply until June 30, 2021. The employer’s duty to keep records does not include documentation showing how many employees or even which employees actually benefited from. the test offer.

The regulations require employers to pay for the tests. The Corona Occupational Health and Safety Regulation does not specify which tests employers must offer, so employers can presumably also offer self-tests.

The process of collecting and evaluating samples is straightforward for self-tests. Individuals can perform these tests with a nasal swab or by collecting saliva, for example. Rapid antigenic testing, on the other hand, can only be performed by trained personnel, who typically collect nasal and / or throat swabs from individuals for evaluation.

Despite the employers’ obligation to offer the test, employees can choose whether or not to be tested. Employees who test positive are required to notify their employer immediately. While SARS-CoV-2 should be reported to the responsible health unit according to the infection protection law (IfSG), the obligation of employees to report positive test results also derives from the employment relationship as employers need this information to fulfill their duty of care and protection and to protect the health of the employee. all employees.

Employer’s right to compensation in the event of preventive quarantine

With a positive rapid antigen test result, a person who has been tested is considered to have a suspected case of COVID-19 and should be quarantined. In accordance with Art.56 (1), sentence 2 IfSG, in the event of such a precautionary quarantine (i.e. even before a quarantine ordered by the authorities), the employees have a claim for compensation for loss of income. Employees can claim to be entitled to compensation only if working from home is not possible. The employer must pay the employee in accordance with Section 56 (5) IfSG. However, the employer can request reimbursement from the competent authority.

Once an employee tests positive on the rapid antigen test, he or she should also contact a physician or an appropriate testing center by phone to have a polymerase chain reaction (PCR) test performed. If the PCR test result is also positive, the employee should remain in quarantine. The laboratory will automatically forward the positive results of the PCR tests to the appropriate health service.

Tightening of the Home Office obligation

As of April 23, 2021, the IfSG has been amended with the new article 28b IfSG, which requires employers to allow their employees to work from home if they perform office work or comparable activities, unless there are compelling operational reasons to the contrary. Therefore, the requirement of the Corona Occupational Health and Safety Regulation that certain employees work from home is no longer in effect and is instead incorporated into the IfSG. The obligation to work from home is now extended to all employees, unless the employee can demonstrate the reasons why he could not work remotely. Thus, employees are no longer free to choose whether or not they will work in their office, and employees who do not think it is possible to work from home must inform their employer of the reasons. The remote work obligation will remain in effect as long as the German Bundestag’s determination of an epidemic situation of national significance remains in effect, or until June 30, 2021.

Employers may want to document the presence and reasons for employee activities in the office in order to be able to demonstrate compliance with the home office obligation under Article 28b (7). IfSG.


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