Since November 2021, "vaccinated, tested or recovered" also applied in the workplace. As of March 5, 2022, most Corona regulations are to be repealed. According to the Federal Minister of Labor, this also applies to the 3G rule at the workplace. There is still no new regulation for the time after that. What will apply after March 5, 2022 and what measures must be taken by employers?
If the 3G regulation at the workplace were to be abolished without replacement, employers would in principle also have to continue to pay those employees who do not have proof of 3G; the release from work with simultaneous loss of continued payment of remuneration would then no longer be possible. Employers would no longer have to monitor compliance with the 3G and authorities would no longer check compliance.
Voluntary retention of 3G possible?
Employers have a general duty of care for their employees; In particular, they must protect the life and health of their employees, even after the abolition of the 3G regulation. The avoidance of infection with the coronavirus (classified as a pandemic)at the workplace is part of the general duty of care. Employers must therefore continue to take suitable and appropriate measures to prevent infection with the coronavirus.
The 3G regulation has been implemented in most companies. As a result, many companies will probably consider continuing to make 3G mandatory. Maintaining 3G in the workplace will generally require the consent of the works council or - if none has been established - of all employees. Several questions arise with regard to practical implementation: Is the time for testing working time? Do employers have to pay any costs for testing? May the wearing of respirators be mandatory?
Due to the current mandatory vaccinate, it would be obvious that unvaccinated employees who are not exempt from the obligation to vaccinate must pay the costs of testing and that the time spent on this is not working time. In contrast, tests ordered by employers, if they serve to protect other employees in accordance with the general duty of care, would indicate that the tests assign to the sphere of the employer. The cost risk would therefore also affect the employers.
Due to the (still) missing the new legal provisions, these questions cannot be answered conclusively at present. The abolition of the current provisions without replacement could result in significant legal uncertainty for companies.
Special arrangements for vulnerable sectors
Despite the gradual relaxations of the Corona regulations, areas that predominantly affect vulnerable persons will be specially protected. These are, in particular, homes for the elderly, nursing homes and hospitals. 3G will probably continue to be mandatory in the workplace in these facilities.
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