FAQs - "3G"

Where people come into contact with other people (physical contact), employers and employees may now only enter workplaces if they can prove that they 

• are vaccinated against ("geimpft") or 
• have recovered from ("genesen") COVID-19 or if they 
• have a negative test result ("getestet"). ("3G") 

Physical contact in this sense is assumed to occur when there is a chance that people will come into contact with others in the workplace, even if there is no direct physical contact. Whether employees actually come into contact with other people is irrelevant. Workplaces are offices or other places in buildings on the premises of a business, places outdoors on the premises of a business and construction sites to which employees have access. Workplaces also include storage rooms, sanitary facilities, rooms used to take breaks, accommodation, etc. Rooms in private homes used to work from home, vehicles and means of transport are not covered by this term. Special conditions apply to "collective employee transports" – see below.

Employers must monitor and, where appropriate, deny access. Employees must carry with them up-to-date proof of their vaccination, recovery or tested status in paper or digital form if this is not on file with the employer.

Employees who do not meet the 3G requirements may only enter the workplace to take a test immediately before starting work or to take advantage of an offer of vaccination by the employer.

For care institutions, workplaces for the disabled, hospitals and the like, much stricter requirements apply (for details please see section 28b (2) German Protection against Infection Act (IfSG), including a general testing obligation, from which employees who are vaccinated or have recovered from COVID-19 are not exempt. From 15 March 2022, 2G will also apply there in accordance with section 20a German Protection against Infection Act (IfSG) 2G, meaning that only people immunized by vaccination or recovery will be allowed to work in such institutions.

The 3G principles in the workplace also apply when several employees are transported to or from the workplace collectively (collective employee transports). A "collective employee transport" in this sense is deemed to be where the journey is part of the internal organisation of the business. This therefore applies to any transport on the business premises as well as to joint business trips.  

An indication of this can be assumed if the employer provides a company car, and certainly if the employer pays the fuel costs. A special driver does not have to be available. The journeys can be made by any employee – even where just two employees are transported collectively. Whether or not the travel time is remunerated as working time is irrelevant (see section 28b (1) German Protection against Infection Act (IfSG) for details).

However, this does not apply to private journeys to work.

The obligation to provide proof applies to employers and employees. This means that employers themselves must also carry proof that they comply with the 3G requirements. Further, all of their "employees" must carry such proof, i.e. employees including those employed on the basis of the EUR 450 regulations and trainees. This is likely to also apply to external employees who are employed by a third-party (hiring agency) but are deployed by an employer (borrower) on the basis of temporary employee leasing. The same most likely also applies to freelance workers of a business since it is not the employee status under employment law which is decisive. 

The wording of the law does not contain a restriction to "own" employees and employers or those belonging to the business. It is therefore unclear whether external staff (outside of temporary employee leasing) or self-employed persons, e.g. sales representatives of other companies, commercial agents or tradesmen working on the premises are also covered. The wording of the law does seem to suggest this. However, there are also considerable arguments against this view. The German Federal Ministry of Labour and Social Affairs is, in any event, of the opinion that it is irrelevant whether the place of work is attributable to the employee's own employer from the employee's point of view or not. Employees and employers must therefore also carry proof of their 3G status with them whenever they enter the workplaces of other employers for work-related reasons (see here under 1.1.2.). It is unclear to what extent the labour courts will follow this view.

Ultimately it is unlikely that the entrepreneur would be allowed to check whether external persons meet the criteria for 3G status on the basis of section 28b German Protection against Infection Act (IfSG). Regardless of this, each company can, however, make use of its domiciliary rights and therefore also monitor and enforce 3G against these persons on this basis.

However, if the company does not want to perform checks on external parties, according to the view of the German Federal Ministry of Labour and Social Affairs, it is probably not under an obligation to do so. In its FAQs, the Ministry states the following: "Every employer must carry out access controls for its employees before they enter workplaces, regardless of whether it is its own workplace or that of another employer" (see under 1.1.11.).

The new rules and changes to the German Protection against Infection Act (IfSG) came into force on 24 November 2021. The duties apply directly from the law.

However, an ordinance of the Federal Ministry of Labour and Social Affairs may additionally prescribe which measures employers must take to implement the obligations under this provision and how employees must behave in order to comply with their respective obligations arising from this provision.

A COVID-19 antigen rapid test is sufficient. All common tests satisfy the necessary requirements.  

A PCR test is not required, but is also an option. 

A test certificate must be provided. Rapid tests (antigen self-tests) carried out by the employee at home therefore do not meet the requirements. However, rapid tests carried out under the supervision of the employer (or by personnel trained by the employer to do so) are possible. Employees do not have a right to demand that the employer offer rapid tests under supervision.

In care institutions, hospitals and the like, where testing is mandatory for everyone, persons who are vaccinated against or who have recovered from COVID-19 may carry out a self-test without supervision (section 28b (2) sentence 2 second half sentence German Protection against Infection Act (IfSG)).

The test must not be older than 24 hours (section 28b (1) sentence 1 German Protection against Infection Act (IfSG) as read with section 2 no. 7 COVID-19 German Protective Measures Exemption Ordinance (SchAusnahmV)). The time of entering the workplace is likely to be decisive. For example, if an employee starts work at 8.30 a.m. and can produce a test certificate from the previous day at 9 a.m., this will probably be sufficient. 

PCR tests are allowed to be a maximum of 48 hours old.

Employers are currently required to provide their employees with at least two tests per week free of charge (section 4 (1) German SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV) of 25 June 2021). This applies to everyone: those who are vaccinated, those who are not vaccinated and those who have recovered. Self-test are deemed to be sufficient. However, for unvaccinated employees, these self-tests are not sufficient to prove their tested "3G" status if they are not taken under supervision. Employees do not have a right to demand that employers offer supervised self-tests.

Employers must currently keep proof that they have procured tests and also the agreements with third parties on the testing of employees. The retention period is being extended until 19 March 2022.

No. Only those who are not vaccinated are required to take a test. Exceptions exist in the field of hospitals, care institutions, workplaces for the disabled, etc.

Yes – since employers must inform employees – in an accessible format – about workplace access regulations.

Yes, employers may – and must – ask their employees about their 3G status. Since employers are required by law to monitor and document the status of their employees and that the relevant regulations are being complied with, employers have a right to information in this regard. 

However, vaccinated or recovered employees could (theoretically) also decide not to disclose their status and instead take the (more cumbersome and also more expensive) route of taking tests on a daily basis or – as far as permissible in the individual case (see below) – work from home instead. They must not suffer any disadvantages as a result of this. 

This also means that the employer still cannot be 100 % sure that an employee who chooses the testing route is not vaccinated against or has not recovered from COVID-19. This plays a role, for example, in connection with the question of whether employees are entitled to salary in the event of quarantine. This remuneration is currently excluded by administrative practice in most German federal states for unvaccinated employees.

There is a right to data processing insofar as it is necessary to monitor access. Employers may therefore process personal data including vaccination status, sero status and test status data in relation to the Coronavirus Disease-2019 (COVID-19). The data may also be used to adapt the company hygiene concept. At the same time, as far as possible, the data must be processed in such a way that the interests of the employees whose data are processed are adequately taken into account (section 22 (2) GDPR). As we understand it, this means that the employer would be advised to appoint one or more responsible persons who are allowed to monitor the proof of 3G status. These persons must be made aware of the confidential nature of this information and subjected to a confidentiality obligation. Digital forms of collecting and saving proof of 3G status are also permitted. In addition, the general provisions of data protection law continue to apply.

3G data, i.e. in particular the validity period and barcode/QR code of digital proof of 3G status as well as "other personal data", may be stored by the employer. 

"Other personal data" is likely to be understood to mean the name of the employee as this is the only way to allocate the data. Digital forms of collecting and saving proof of 3G status are also expressly permitted in order to create additional ways to reduce the time and expense associated with the operational implementation of the requirements and in order to be able to provide the competent authorities with the proof required that the monitoring has taken place. 

The data must be erased at the latest at the end of the sixth month following the time when it was collected.

In principle, employers must monitor all employees on a daily basis when they come to the workplace. However, employers have to check that the worker meets one of the criteria for 3G status, but not which one. They can therefore check the 3G proof of the employees on day X and then, for example, issue them with uniform "passes" - for employees who have recovered from COVID-19, for a maximum of six months after the time when they became ill and for unvaccinated employees, for one day at a time. This actually means that only those employees who are not vaccinated need to be monitored on a daily basis. 

If employers decide to take this route, they must design "passes" which are identical regardless of the applicable 3G status, i.e. they should not use different colours for different statuses as this is the only way to ensure data protection as against colleagues.

Where no access monitoring at the factory gate takes place and it is not possible or there is no desire to introduce such monitoring or monitoring in another manner, there should be a checkpoint near the entrance to present proof of 3G status. For unvaccinated employees, offering rapid tests under supervision at such checkpoints would also be conceivable.

However, employers should consider spot checks. Otherwise, employers could run the risk of breaching their monitoring obligation.

Failure to carry proof of vaccination/recovered/negative test status when entering the workplace is an administrative offence that can trigger a fine of up to EUR 25,000 for the employee. The same applies to employers if they do not comply with the monitoring and documentation obligations for their employees. The fines vary by state.

Introducing 3G at the workplace is not subject to codetermination. This is a government requirement with no room for manoeuvre. 

However, "how" 3G is implemented is subject to codetermination. The works council can therefore have a say, for example, on issues such as how employees are monitored, whether passes are issued or how tests are to be carried out at the company (section 87 (1) nos. 1, 7 German Works Constitution Act (BetrVG)). The same applies if the monitoring and recording is to be carried out electronically.

Anyone who is not prepared to show a test must be refused entry to the workplace. 

Such employees will lose their entitlement to remuneration unless the parties can/want to mutually agree that the employees can work from home.

It is unclear whether disciplinary measures (warning and, where appropriate, termination) are possible. This will depend first of all on whether or not employees who come to the workplace but do not provide proof of 3G status are still deemed to be offering their work performance properly or in accordance with their employment contracts. There are convincing arguments in favour of there not being a proper or contractual offer of work performance without proof of 3G status. Under the new law employees must provide proof of their 3G status and the employer is prohibited, subject to a substantial fine, from accepting the work performance without proof of 3G status. In such a case refusal to work must be assumed. Consequently warnings and, as a last resort, termination on grounds of behaviour would be allowed (termination with notice and without notice for good cause). A termination will always only be considered as a measure of last resort, i.e. after a warning (possibly several warnings), and only if it can be assumed that the employee will continue to refuse to provide proof of 3G status in the future.

The employer must allow office employees, or those who perform similar activities, to work from home as long as there are no opposing urgent operational reasons. In this regard examples are caretaker services, postal services, IT services, necessary customer and employee contacts, processing of incoming or outgoing goods and, in certain circumstances, also ensuring that first aid can be provided at the business. Further, technical and organisational reasons can argue against moving activities to a work from home environment. 

Employees, in turn, are under a legal obligation to work from home, unless there are reasons which oppose this. Reasons which could oppose this can, for example, be lack of space, a poor internet connection or disturbances by third parties. According to the explanatory notes on the legislation, it is sufficient for employees to inform their employers of this informally on request. 

Regardless of this, employees can request to work from home if there is a basis for this in a collective agreement or a works agreement or if there is an individual agreement to this effect.

The implementation of a 2G policy (vaccinated and recovered only) is problematic with regard to those employees who cannot or do not want to provide proof of their 2G status. Currently, the prevailing view is that employees may not suffer any disadvantages from a 2G regulation at the workplace. Employees who refuse to comply with the 2G regulation therefore retain their remuneration entitlements and may neither receive a warning nor be dismissed for this. It is also conceivable that employees could file a claim to be allowed to work from the workplace despite the 2G regulation (based on their right to employment). For many employees, a home office policy may be a good idea – please see above for the requirements for this. However, a 2G solution remains problematic, especially if certain employees have to perform their work at the workplace for technical/organisational reasons and oppose the 2G regulation.

In practice, however, more and more companies seem to be moving to 2G.

From 15 March 2022, 2G will apply by law on the basis of section 20a German Protection against Infection Act (IfSG) in hospitals, doctors' surgeries, nursing homes and similar institutions.