German Covid rules for the workplace from 20 March 2022

Update on the Covid Workplace Regulations from 20 March 2022

The new Covid Occupational Health and Safety Regulations (Ordinance) has been adopted (available here). In doing so, there are some changes to the last circulating version (discussed here):

Basic protective measures are no longer compulsory on the basis of the Ordinance. Instead, companies are responsible for creating a suitable hygiene concept to protect employees. The following options are expressly mentioned, to be considered within the framework of a risk assessment:

• Offering one free test a week to employees who do not work exclusively from home.
• The reduction of contacts in the company, especially by avoiding or reducing the simultaneous use of rooms.
• The provision of masks.

In addition, the SARS-CoV-2 Occupational Health and Safety Rule continues to serve as an interpretative guide to the Ordinance. As a result, the basic protective measures described in more detail there must also be taken into account in the risk assessment and the resulting hygiene concept.

The fact that the Ordinance no longer lists mandatory measures does not mean that measures are not mandatory at all. Companies themselves are responsible for finding their own mandatory measures. These are the measures that ensure the protection of employees.

This adaptation of the Ordinance means that companies cannot follow clear rules, but have to decide and take the appropriate measures for the respective situation themselves. This leads to uncertainty. In order to avoid risks and with regard to high infection rates, it is advisable to err on the side of caution with the hygiene concept.

Original article before update

A variety of Covid rules are only in effect until 19 March. What will happen after 20 March has so far only been communicated cautiously and with drafts with regard to the workplace.

No obligation to work from home

In Bund-Länder-talks (Federal-state-talks) in February, it was decided to gradually roll back restrictions. This opening will take place in three steps, with the third step taking place from 20 March and will include the end of the working from home obligation. As a result, companies will no longer be obliged to allow their employees to work from home from 20 March.

No control of "3G status“

The obligation, or rather the right, to check the "3G status" (vaccinated, recovered or tested) of employees before they enter the workplace will also cease to apply from 20 March. There will then no longer be a legal basis for processing this particular personal health data. Whether processing of the data with the consent of the employees is nevertheless permitted is disputed. A large number of voices are of the opinion that employee consent is not possible. As a consequence, according to this view, the processing of "3G status" is also no longer possible.

The new Corona Occupational Health and Safety Regulation

The rules that will apply in the workplace from 20 March have not yet been officially decided and communicated. The only information currently available is the draft of the new Corona Occupational Health and Safety Ordinance (Ordinance) (available here). This draft has not yet been shared by the Federal Ministry of Labour and Social Affairs itself and should therefore be treated with caution. However, since much of the content is consistent with what other sources are saying about new occupational health and safety rules, companies can at least expect the rules detailed below or similar to apply as of 20 March:
As is currently the case, companies must conduct risk assessments. On this basis, a hygiene concept must be drawn up that defines and implements the necessary protective measures to protect against infection in the workplace. To this end, the Ordinance lists various measures that are referred to as basic protection measures and are considered to be particularly important and proven. These include, in particular, the AHA+L rules (distance, hygiene, daily routine with mask and ventilation).

Companies should include in their hygiene concept a reduction in the simultaneous use of rooms by more than one person and the maintenance of a safety distance of 1.5 meters. If it is not possible to maintain the safety distance, masks should be worn. These masks are to be provided by the company.

Furthermore, all employees must be offered a Covid test twice a week. The company continues to be responsible for providing these tests. In addition, companies are still required to allow employees to receive a Covid vaccination during working hours.

Other rules can also be part of a hygiene concept. The regulation refers to the SARS-CoV-2 occupational health and safety rule, which serves as an interpretation aid. The basic protective measures already described in more detail above are set out in this rule. In addition, it contains information on contact restrictions, hygiene and disinfection, ventilation and a number of other possible (and recommended) components of a hygiene concept. The occupational health and safety regulation can be found here.

The rules in the Ordinance are initially effective until 25 May 2022.

Rules in the federal states

According to the Ordinance, the regulations of the federal states remain unaffected. However, with regard to occupational health and safety, the federal states follow the Ordinance quite closely. Hygiene concepts that are acceptable under the Ordinance are also likely to be so under the rules of the federal states. States such as Hesse, Bavaria, North Rhine-Westphalia and Hamburg explicitly refer to the Ordinance on their websites.