Is it really better to ask for forgiveness than to ask for permission? – yet another update on German Covid-19 legislation – Employment Germany

The SARS-Cov-2-Occupational Health and Safety Ordinance ( cf. our blog entry of 23 March 2021 and 22 April 2021 which was due to expire on 10 September 2021 has been amended and extended until 24 November 2021 (“Amended Ordinance”).

In recent weeks, public life has slowly opened up in Germany again with a lot of businesses (in particular restaurants) applying the 2G- (meaning only vaccinated or recovered people are allowed to enter) or the 3G-rule (meaning only vaccinated, recovered or tested people are allowed to enter). This has become so common in daily life that it is not easy to explain to companies that, for privacy reasons, they are not allowed to ask their employees about the respective vaccination status.

The Amended Ordinance only indirectly addresses the issue by stating that “In determining and implementing infection control measures at the workplace the employer may consider an employee’s known vaccination or recovery status”. This, however, only provides cold comfort. In particular, it is unclear how the company could have obtained such knowledge without violating privacy laws. There is an argument that the Amended Ordinance would allow to process such employee information which was provided on a voluntary basis, but then the German DPAs take a rather restrictive view on whether a voluntary disclosure of information is at all possible in an employment context. Therefore, companies should still tread very cautiously in using such information.

The Merkel administration has chosen to address the issue during its last few months. Today, there were media reports that in the night of 3 September 2021 the administration agreed that employers in Kindergardens, schools and retirement homes may ask its employees about their vaccination status. We will need to see the draft of the new law, of course, but based on media reports it seems likely that this will not be extended to other businesses. We will update you if there is more specific information. It will also be interesting to see how a new administration will deal with this issue after the election on 26 September 2021.

The Amended Ordinance also provides for the following (again, valid until 24 November 2021):
• Employees are entitled to paid leave to get vaccinated during their working hours. It is expected that this will trigger overall costs of €300m.
• Employers are obligated to support company doctors in case of vaccination at the workplace. This only replicates existing law
• The employer remains obligated to offer bi-weekly Covid-19 tests. This will trigger further costs, in particular since as of 11 October 2021 only vaccinated or recovered people will be eligible to free public testing.

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