“3G Rules” and Mandatory Testing by Employers in Germany

(19.11.2021 + 23.11.2021)

The 4th Covid-19 wave is currently hitting Germany with full force and is driving incidence and hospitalisation figures to new heights. For this reason, stricter legal requirements are being put in place.

Rigorous guidelines were adopted today, especially for the workplace: Employees who come into contact with other people must observe the 3G rule. Additionally, where possible, employees should work from home.

3G obligation in all workplaces – what does this mean and what are the employer’s obligations?
In the near future, employees in Germany will only be allowed to enter their workplace if they have been vaccinated, have recovered from Covid-19, or have been tested (§ 28b IfSG / German Infection Protection Act):

  • If employees have physical contact with other employees or third parties at their place of work, the employer must check whether the employee has been vaccinated, recovered or tested on a daily basis (Section 28b Para. 3 IfSG). This regulation does not apply to working from home or, for example, workplaces in vehicles.
  • Employees must have their certificates ready or deposit them with the employer. Only rapid tests taken no more than 24 hours prior, or PCR tests taken no more than 48 hours prior are accepted.
  • The presentation of a vaccination or recovered certificate is voluntary. However, if such a document is not presented, a current negative test must be provided.
  • Employers are obliged to monitor and document the 3G evidence on a daily basis.
  • The employer must provide data protection information explaining to employees how their data is handled.
  • Wherever possible, employees should be sent to work from home (Section 28b Para. 4 IfSG).

How can the employer document proof of 3G?

  • The fact that this obligation to document exists for the employer is regulated in § 28b Para. 3 IfSG.
  • fox-on recommends that only the status be noted in a list. According to the wording of the law, the employer could also make copies of the evidence – however, we do not recommend this if this is not absolutely necessary (the principle of data minimization must be observed).
  • For vaccinated and recovered persons, the status must be documented only once; for recovered persons the documentation can include the end date of their status.
  • The data must be deleted no later than six months after collection (Section 28b Para. 3 last sentence IfSG).
  • In addition, the employer must ensure that the data does not reach unauthorized persons or colleagues.

Compulsory testing for everyone in care facilities and hospitals
Even stricter requirements apply to visitors and employees in care, rehabilitation and similar facilities in Germany: Everyone must be able to present a valid, current test (i.e., also vaccinated and recovered persons, but not patients and persons in care).

  • The operator is obliged to check the evidence daily and document it regularly.
  • Persons who are vaccinated or have recovered from Covid-19 only need to take a test twice per calendar week, and in this case proof of a rapid test is also sufficient.

The employer or operator of a facility in Germany may collect and process the necessary data for 3G detection (§ 28b para. 3 IfSG). They may also use the data to adapt their hygienic concept. Please note: This is health data and must be kept secure and protected accordingly.

If the competent authority inquires, the employer or operator of the facility must provide the necessary data. Care facilities and hospitals are also obliged to transmit statistical and anonymised data on all tests carried out as well as the percentage of vaccinated persons to the authorities every two weeks.

In future, only vaccinated, recovered or tested employees may enter their workplace in Germany. Employers must monitor this.
In care facilities and hospitals, all visitors and employees, including persons who are vaccinated or have recovered from Covid-19, must show an up-to-date test.

Please stay healthy and brave the fourth wave. In the next newsletter we will then dedicate ourselves to a nicer topic: book gifts for Christmas.

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