Work must be safe for employees. In the context of the Corona pandemic, occupational health and safety has the task of preventing infections at work and thus serious illnesses. Business owners must ensure the safety of their employees - especially if activities cannot be carried out in their own homes. Regular tests, a 3G rule in companies and a home office obligation should help to combat the pandemic.

Keeping an overview of the multitude of rapidly changing laws is tedious. Sawayo won't leave you alone! Here you can get answers to the most important questions about test types, costs and laws.

The most important facts in brief

At least

• Implement a 3G (vaccinated, recovered, tested) policy in the workplace and monitor compliance on a daily basis.
• If your employees work in an office or perform a similar activity, you must offer them the opportunity to work from home if there are no compelling operational reasons to the contrary. Your employees must accept this offer if there are no reasons for them not to do so (e.g. confined space, disturbance by third parties or inadequate equipment).
• Provide at least two self-tests per week free of charge to employees who do not work exclusively in a home office.
• Prepare and submit a written offer to the workers to provide the tests.
• Teach your workers how to use the tests.
• Have your employees confirm in writing that they have received both the offer, the tests themselves and the handling instruction.
• Inform your workers about the risks of covid 19 disease and about vaccination options.
• Free up your workers to take up vaccination offers and support company doctors with company vaccination offers.
• Review the provincial regulations regarding testing, documentation and certification requirements with regard to testing.

Recommended (additional)

• Create a test concept regarding self-tests and quick tests.
• Train your workers to use SARS-CoV-2 antigen tests.
• Inform your employees in writing about the procedure to be followed in case of positive test results.
• Have your employees sign the privacy policy on handling positive test results and document this in the data protection register.
• Draft a rapid test certification template for workers and provide it to them after the rapid tests have been conducted.
• Review the provincial regulations regarding testing, documentation and certification requirements with regard to testing.
  
  

The new Infection Protection Act - What do I have to consider?

The new Infection Protection Act (IfSG) has been in force since 25 November 2021. The catalogue of measures will apply until at least 19 March 2022. A one-time extension of 3 months is provided for in the law.

This includes the following points:

The home office obligation

We already know this regulation from an earlier regulation that was valid until 30 June 2021. As an employer, you must offer all employees who work in an office or similar job the opportunity to work from home, unless there are compelling operational reasons not to do so.

Employees must accept the offer. Only for important reasons, such as a lack of work or too many disturbances at home, can they refuse the offer.

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SAWAYO tip: Send your employees the offer of a home office in writing and ask them to confirm that they have taken note of it. This way you are protected in case of inspections.

The 3G rule

Employers and employees may only enter workplaces if they have been vaccinated, recovered or tested. For this purpose, companies must provide efficient access control. Inform your employees in writing and in an accessible way (preferably digitally) about the 3G rule and check and document compliance on a daily basis. The respective status must be proven by a vaccination certificate, proof of recovery or an official test certificate. While rapid tests may be no more than 24 hours old, a PCR test remains valid for a maximum of 48 hours. Without valid proof, workers may only enter workplaces to be tested or vaccinated on site. Unvaccinated workers must therefore be able to show a negative test every day they are in the workplace. This regulation applies regardless of the industry or activity performed. Violations are punishable by fines on both sides. Employees may also face consequences under labour law.

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SAWAYO tip: Sawayo simplifies the instructions and gives the entire team the opportunity to digitally document the test results. As an employer, you always have an overview of who has been tested and when. This saves time and resources. Find out more here.

The vaccination support obligation

In order to reduce the risk of Corona infection in companies, employers must contribute to a higher willingness to vaccinate in Germany. As an employer, you must, for example, allow your employees to be vaccinated during working hours. In addition, you must address your employees through an in-house information campaign and inform them about the health risks posed by Corona and how these can be reduced through vaccination. This obligation is part of the occupational health and safety training.

Protection in care

Special protection is given to groups that have difficulty protecting themselves against the Corona virus, such as residents of old people's homes, nursing homes or institutions for integration assistance. Anyone who works in or visits these facilities must now be tested - this also applies to fully vaccinated persons. Anyone who enters these facilities for professional reasons, such as craftsmen, mail carriers or therapists, must also have a negative test. For care workers who have been vaccinated or have recovered, an unaccompanied self-test is sufficient.

SAWAYO tip: In a care facility, you need to be able to fully document that you and all your staff are tested every day. If you copy or photograph all test certificates individually, you lose valuable time. With Sawayo, you can always see which employees have been tested and when. Find out more here.

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Here you can find the current regulations on the Infection Protection Act:

• Resolution of the MPK of 02.12.21
• § Section 28a Infection Protection Act (IfSG): Special protective measures to prevent the spread of coronavirus disease-2019 (COVID-19)
• § Section 28b of the Infection Protection Act (IfSG): Nationwide uniform protective measures to prevent the spread of coronavirus disease-2019 (COVID-19), authorisation to issue ordinances
• § Section 28c of the Infection Protection Act (IfSG): authorisation to issue ordinances for special regulations for vaccinated, tested and comparable persons

The federal government issues an opening clause to the individual Laender: upon resolution of their Landtag, certain measures restricting private and public life may be maintained or newly enacted. Therefore, in addition to the federal rules, note the legally binding requirements of the federal states. You can find an overview of the Corona rules in the individual federal states here:

• Rules in the federal states

SAWAYO tip: Be sure to observe the state regulations: These are sometimes interpreted more strictly than the federal regulations.

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What still applies? (excerpt)

• Employers must support company doctors in offering vaccinations at work.
• Employers must offer a free coronatest at least twice a week to all employees who cannot work exclusively in their homes, regardless of their occupation.
• You are already fulfilling your duty if you allow your workers to test themselves at home or elsewhere.
• Keep a minimum distance of 1.5 metres from other people or wear a mouth-nose protection (medical face masks) where this is not possible.
• Provide liquid soap and towel dispensers in sanitary rooms.
• Air regularly and ensure that this is possible.
• If rooms are used by several people at the same time, 10 square metres must be available per person.
• In companies with 10 or more employees, divide your employees into small, fixed working groups.
• Provide at least medical face masks (mouth-nose protection).

What do I have to implement in operational practice regarding the obligation to test?

• As a minimum, offer self-tests to your employees (the differences between the different types of tests follow later in the text).
• Obtain BfArM-approved self-tests for your company and pass them on to your employees.
• The costs and financing for the tests are borne by you as the employer. However, you can deduct the procurement costs from your taxable income. Furthermore, the costs are expressly recognised as eligible for funding under the Corona Bridging Assistance III.
• Keep proof of test procurement until 19 March 2022.
• Inform your employees about the tests and instruct them in their use. Document this information obligation in writing and/or digitally.

SAWAYO tip: You can find a template to prove the obligation to offer here.

What happens in the event of violations of the obligation to test (obligation to offer)?

Violations of the regulations of the new Infection Protection Act may result in fines. In the final analysis, compliance with the regulations can be enforced by means of company closures through official orders.

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What types of tests are there?

Self-test (also called layman's or self-test)

Antigen self-tests, or simply self-tests, are based on the same principle as PoC antigen rapid tests: they are suitable for self-administration by laypersons. Antigen self-tests require approval by the Federal Institute for Drugs and Medical Devices (BfArM) and are published here: Tests for self-administration by laypersons (bfarm.de)

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PoC antigen rapid test

The abbreviation "PoC" ("Point of care") means "near-patient laboratory diagnostics" in German. In contrast to the self-tests, the PoC antigen rapid tests for SARS-CoV-2 are carried out by competent persons or under qualified supervision. Suitable and approved PoC antigen tests are published by the BfArM here: List of antigen tests (bfarm.de)

PCR test

PCR tests detect the SARS-CoV-2 pathogen using genetic viral material in the sample, are the most reliable and are considered the"gold standard". Medical personnel perform the nasal or throat swab. The PCR test is evaluated by a laboratory. It usually takes about 24 hours, but can also take up to 48 hours.

Does the test have to be done in the company itself or can I also commission external bodies?

Self-tests, as the name suggests, are used by employees on themselves - at home, on the road or at work. The prerequisite for a valid self-test is that it is carried out under the supervision of the employer or a person appointed by the employer and that it is documented. This requirement can easily be met with a digital programme such as Sawayo.

You do not have to commission an external body to carry out self-tests - unless state regulations stipulate otherwise.

You can also commission trained employees or external bodies such as a doctor, a pharmacy, a test centre or certified service providers to carry out rapid PoC antigen tests. However, the costs are borne by you as the employer.

When fulfilling the test offer obligation, employers are not allowed to use the free citizenship tests.

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How must the tests be supervised and conducted?

Accompanied self-test

For self-tests, the time and place of testing are not prescribed. However, it makes sense for employees to take the test before they start work: In case of a positive test result, you avoid further infections in the workforce by taking appropriate measures and still have the opportunity to take certain organisational measures.

There is no obligation for companies to supervise or conduct the test of their employees even under the new law - however, an unaccompanied test does not constitute official proof of testing and is therefore useless.

If you offer supervised testing to your workers, you can qualify your workers as test supervisors. Instruct these workers on the proper conduct of the test according to the instructions for use of the test being used. This includes the procedure for observing the appropriate hygiene measures when performing the tests. If you instruct all suitable employees, your employees can supervise each other during the tests. This makes your organisational work much easier.

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SAWAYO tip: For care facility workers who are vaccinated or recovering and who must show a negative test before entering the facility, a self-test without supervision is sufficient.

PoC antigen tests

PoC antigen tests must be carried out by demonstrably competent persons. A competent person is someone who has completed training in the medical field or a course of instruction. Deviating from this, the activity can be transferred to persons without proven expertise (i.e. also to the employees themselves) if the activities are carried out under the supervision or in the company of a competent person. However, training as a first aider is not sufficient to qualify as a specialist.

Anyone who carries out a PoC antigen test must first be instructed in detail. The operating instructions created by the activity-related risk assessment serve as a basis here. Detailed information can be found here: Recommendation of the Committee for Biological Agents (ABAS) on "Occupational safety measures for sampling and diagnostics of SARS-CoV-2" (baua.de)

SAWAYO tip: As a supervisor or accompanying person, you can be instructed by your company.

PCR test

PCR tests may only be carried out by medical personnel and laboratories.

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Should or may I issue a certificate of the test result?

Self-test:

If employees test themselves without accompanying supervision, no certificate will be issued as a matter of principle. However, they can document their test result themselves (e.g. by taking a photo). However, this is not legally binding.

If the test is carried out under the supervision of instructed personnel, a test certificate can be issued. There is no obligation to do so.  

PoC antigen rapid test:

If approved bodies or persons carry out or supervise the rapid tests, the tests can be certified. If you, as the employer, are allowed to carry out the test, you can also issue a certificate. It must contain the following information:

• The body or person who conducted or supervised the test
• First and last name of the person tested
• Type and name (manufacturer) of the test
• Date and time of the test
• Test result

In addition to conducting the test in the test centres (citizen test), companies can also train employees and thus qualify them to conduct and certify the rapid test. In most federal states, the tested persons can also use these certificates for private purposes such as shopping or visiting the hairdresser.

SAWAYO tip: Most federal states provide appropriate forms for this purpose. Due to partially differing regulations, it is highly recommended to additionally check the state regulations. In North Rhine-Westphalia, for example, companies that want to issue certificates must register online in advance in an unbureaucratic procedure: Free employee testing with test certificate | Arbeit.Gesundheit.Soziales (mags.nrw)

PCR test:

The certificate for a PCR test is issued by the institution carrying out the test (e.g. medical facility, laboratory).

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What do I need to document as part of the on-farm testing?

As part of the company risk assessment, you must always examine and document the measures for infection protection. In this context, as an employer you should make the test offer and the 3G regulation known to the employees in writing or electronically and document this. You must keep proof of the procurement of the tests until at least 19.03.2022.

An operational test concept usually includes the following points:

• Determination of monthly requirements and procurement; determination of test modalities, test scope and test intervals
• Determining the personnel requirements
• Determining the structural requirements
• Determination of the procedure to be followed in the event of a positive test result (with possible notification to the public health department in the event of a PoC antigen rapid test).
• Documentation (for PoC antigen rapid test)
• Declaration of consent of the employees to carry out the tests 
• PoC antigen rapid tests used (manufacturer)
• Name and first name of the person tested
• Performing samplers (institution, name, information on expertise, ...)
• Documentation of positive test results and reports to the public health department.
• Data protection requirements that companies must fulfil when dealing with test results

Do I have to adapt the risk assessment and the hygiene protection concept?

As an employer, you must determine the necessary measures to protect against infection in the workplace by carrying out a risk assessment and summarise them in a hygiene concept. Update the hygiene concept as necessary - for example, in the event of legal changes - and make it available to the employees in its current form. The best way to do this is to use suitable digital documentation. Observe the SARS-CoV-2 occupational health and safety regulationswhen drawing up the hygiene concept.

If you comply with these rules, the legislator applies the presumption rule to you: Employers who comply with the rules can assume that they are also effectively fulfilling the requirements for occupational infection control.

Furthermore, the accident insurance institutions have developed additional specifications to facilitate implementation in the individual sectors. You can find these here.

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Does a negative test result mean that workers are certainly not infected with SARS-CoV-2?

No, a SARS-CoV-2 infection cannot be completely ruled out despite a negative test result. Possible reasons for errors can be:

- Current evidence suggests that a person may be infected with SARS-CoV-2 but be in such an early stage of infection that the virus is not yet detectable.

- The test used did not detect the virus.

- Application error: For example, the smear was not taken correctly.

- Antigen tests only respond to larger amounts of virus.

Therefore, even in the case of negative test results, employers and employees must ensure that the necessary occupational and infection protection measures continue to be implemented in the company in accordance with the Corona protection measures.

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Labour law issues

Do employees have to be tested?

With the introduction of the 3G rule in workplaces, employees who are neither vaccinated nor recovered must be able to prove a valid Corona test every working day, unless they work exclusively in a home office. Mandatory testing for vaccinated or recovered employees exists in care facilities. Here, a self-test conducted unaccompanied is sufficient.

As an employer, can I also order compulsory tests for vaccinated or recovered persons?

The ordering of compulsory testing also for vaccinated and recovered persons before taking up work must respect the limits of proportionality. To determine these limits, the interests of employers and employees must be weighed against each other. On the employer's side, there is the interest in occupational health protection and a smooth workflow. On the side of the employees, the right to physical integrity and the right to privacy may be affected.

The employer's interest in carrying out tests will at least prevail if, for example, there is a special risk situation in the company, if there are more cases of infection or if employees show symptoms. In this case - at least as long as the hazardous situation persists - an order may be permissible. An order can also be considered if workers are exposed to an increased risk of exposure, for example due to a large number of contacts or because distance regulations cannot always be observed.

In care facilities, employers, staff and visitors must be able to present a daily updated test, regardless of their vaccination or recovery status.

Do I have to involve the works council when ordering tests?

A permissible order for testing which is not limited to medically indicated individual cases should be subject to co-determination by the works council. In these cases, numbers 7 and 1 of section 87 (1) of the Works Council Constitution Act (BetrVG) may be affected, in particular, to have a say in questions of occupational health protection as well as in questions of the order of the enterprise.

If you, as an employer, conclude a company agreement on testing with the works council, it may be advisable to also regulate the concrete implementation and handling of positive test results as well as data protection in this agreement.

Can employers deny access to the workplace without testing?

If you as an employer have lawfully ordered compulsory testing, you can deny access to the workplace to workers who refuse to take the test. Without a negative test result, workers are not providing their services properly. The obligation to pay could be waived.

Can employers offer bonuses for participation in tests?

For example, you can offer your employees a bonus if they take up the test offer and thereby contribute to health protection. This could include vouchers. This does not constitute a violation of the prohibition of discrimination under section 612 a of the German Civil Code (BGB). The prerequisite is that the amount of the bonus is not suitable to exert such great pressure on the employees that it appears to them as compulsory testing.

An "exemption" from the hygiene concept applicable in the company (keeping distance, wearing masks and ventilating) cannot be promised.

Is the time spent on a test working time?

In principle, the time spent on a test does not count as working time subject to remuneration. This also does not apply if employees carry out the test on site at the company. In these cases, they must take the test immediately before starting work. Since unvaccinated employees are obliged to be tested, their own interest in the test is paramount. However, as an employer you can of course decide to pay for the time spent on the test.

Do I have to report a positive test result? Who must report to whom?

With regard to the reporting obligations to the public health department, a distinction must be made as to whether the test is a self-test, a rapid test or a PCR test. For the rapid and PCR tests, there are legal regulations for reporting positive test results to the public health department. For the self-tests, this notification is not required by law.

However, the tested persons are obliged to report a positive Corona test result to their employers. This obligation results from an analogous application of § 8 IfSG and the employees' secondary contractual duties of consideration. The protective purpose of the notification under section 8 IfSG is to trace the infection and prevent further infections. Employers must be able to protect their workforce and the interests of the company by taking appropriate measures.

SAWAYO tip: You should inform your employees about the reporting obligations - preferably in connection with the company testing strategy. SAWAYO provides a template for informing about the reporting obligation: Download it here.

Do employers have the right to ask questions?

As an employer, you are responsible for checking 3G evidence before entering the workplace. Workplaces must provide efficient access control to allow only vaccinated, recovered or negatively tested persons to enter. This means that unvaccinated and unwell workers must provide information about their test results.

In addition, as an employer you are entitled to ask your employees whether they have taken part in the company test before they start work. If employees have taken part, you may also ask whether the test result was positive. This right arises from the Infection Protection Act and the employees' secondary contractual duty of consideration. This also includes the avoidance of health risks. Employers must be enabled to fulfil their duty to protect all their employees.

What do I have to consider with vaccination certificates?

To ensure that no unvaccinated or untested persons enter your company, you must enable efficient access control. If vaccinated employees do not present a digital EU-compliant vaccination certificate but a vaccination card, you must check the following data:

• Has the vaccination been carried out with a vaccine approved by the Paul Ehrlich Institute?
• Have workers received the necessary number of vaccine doses for a complete vaccination?
• Has it been at least 14 days since the last required vaccination?

Are the reporting requirements compatible with data protection?

Proof of vaccination and recovery status and negative test certificates belong to the particularly protected health data. Since §28 of the Infection Protection Act (Infektionsschutzgesetz, IfSG) obliges you to carry out and document proof checks, you may request and document personal data such as the name and the existence of a valid 3G certificate (including the period of validity). You are not allowed to collect or process any other health data.

Pay close attention to the requirements of data protection and take technical and organisational measures for data security. The data must not fall into the hands of third parties under any circumstances.

You may only process vaccination, convalescence or test certificates if this is necessary for the purpose of monitoring the certificates. You may also use the data to adapt your company hygiene concept. If you violate the Basic Data Protection Regulation, you may be subject to fines and compensation for damages.

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What to do if an employee tests positive?

Workers who test positive must immediately go into self-isolation and confirm the rapid test result with a PCR test. There is no specific regulation for this. However, it can be deduced from the secondary contractual obligations of employees that employees with positive test results must inform their employers - only in this way do employers have the possibility to protect colleagues. As an employer, you can also unilaterally release employees who have tested positive from the obligation to be present and - if possible - order them to work from home until the PCR test result is negative.

According to the RKI (Robert Koch Institute), a positive result with an antigen self- or rapid test initially only represents a suspicion of a SARS-CoV-2 infection. The diagnosis is only made by the subsequent RT-PCR test and the medical assessment (cf. RKI, Epidemiological Bulletin, p. 5). Until confirmation of the self-test or rapid test, colleagues can only be "contacts" on suspicion. If these colleagues or contacts do not show any symptoms, you as an employer do not have to take any measures until the self-test has been confirmed. Of course, you still have to observe the legally prescribed Corona protection measures. The situation is different in the case of a positive PCR test: in this case, you must immediately coordinate the measures with the health authorities.

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How do I prove that I offered tests but the employee refused?

You must announce your test offer in writing or electronically in the company. For documentation purposes, you should have the announcement of the offer confirmed in writing or document the announcement in another way.

Make the announcement to all employees, including those who are currently in the home office, so that they are also informed about the test offer in case they return to work in the office in the foreseeable future. This serves to document that you have taken every possible and available opportunity to protect your employees.

SAWAYO tip: With the help of a digital online system, both information and documentation obligations are possible with Sawayo. You can find more information here.

In addition, you must retain or document evidence of the procurement of tests or agreements with service providers about them on a provisional basis until March 19, 2022.

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As an employer, am I liable for testing?

Self-tests are basically carried out by the users themselves. In the case of self-tests, there are no special formal requirements for the end users. However, PoC antigen rapid tests are carried out by medical or suitable and trained personnel (as already mentioned). If a doctor or other medical personnel with at least three years of training performs the test, they are liable according to the general principles of professional law. Employers are not liable, as the conduct of the doctors or medical staff is not attributable to the employers.

If you, as an employer, have rapid tests carried out by your own employees who have been specially trained for this purpose, liability may arise in individual cases. The prerequisite for this is that you are accused of negligence. If you commission your own personnel, i.e. do not have the tests performed by medical professionals, they must be carefully trained and instructed. In this respect, you only have a selection and monitoring obligation. You fulfill these obligations through careful selection of the persons and proper training.


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