Since the end of April, new legislation has been put in place to ensure employees must work from home if asked to do so by their employer.
Under the new Infections Protection Act, officially approved by Germany’s parliament, employees will for the first time be legally required to work in their homes if requested to do so by their employers. In turn, employers must ask their staff to work from home where “there was no compelling operational reasons to require you to work in the office”.
What has changed?
Previously, employers had to offer work from home options where possible, but employees were free to decide whether they took the opportunity to work from home, or went into the office. The new law now states that employees must work from home unless there is a specific reason to go into the office. Reasons for employees not being able to do so may be space constraints, interference from third parties or inadequate technical equipment.
Many have wondered why this law only came into place a year in to this pandemic. A few weeks ago a study from Munich-based researcher revealed that the vast majority of German employees were still going into their workplace, even though it is estimated that 56 percent could potentially work from home during the pandemic.
There have also been recent reports that that some companies haven’t been implementing basic hygiene measures, even though COVID-19 infections rates have been worse in the third wave than the previous two waves.
How effective will this new legislation be?
Many are unsure how effective the new legislation will be, and exactly how many people will switch to home working as a result.
Workers can claim they are unable to work from home, without giving clear evidence as to why it isn’t suitable for them. The new act states reasons why an employee may state why they cannot work from home, and this includes for example, space constraints, interference from third parties or inadequate technical equipment. All an employee would need to do is notify their employer that working from home is not suitable for them.
Testing in the office
Those who can’t work from home must now be offered two COVID tests a week by their company. Section 5 of the Corona Occupational Health and Safety Ordinance initially required employers to offer at least one test a week to staff. Originally only certain vulnerable groups of employees were required to have two tests per week, for instance those with health risks or those who are having frequent client contact. However the rules have now changed to include all employees not working from their home.
This has been in effect since April 20th 2021 and will stay in place until at least June 30th. Employers can use various test methods, such as PCR tests, rapid antigen tests or COVID self-tests.
Unsurprisingly many businesses are concerned about the costs involved with providing weekly tests, with the government estimating a cost of around €130 per employee, and that could become very costly if you have a large company of 1000 plus employees.
Many are also doubtful whether two tests a week will be sufficient enough to combat infections in the workplace. However, it will most likely limit the amount of people attending their workplace, which in turn will reduce the spread of COVID-19.
Can an employee refuse a test?
The labour law consequences of refusing a COVID test have not yet been clarified. However, if an employee refuses a test but wants to carry on working, the employer must not accept the work, but rather can give the employee unpaid leave. At the same time, the employer violates their own contractual obligations, which means the employer can give them a formal warning. Repeated warnings may warrant behaviour related termination.
Businesses involved in the vaccine drive
Businesses in Germany have offered to help the government with its vaccination campaign, with several large companies proposing to use their own means to vaccinate their employees, due to the slow paced vaccination programme.
The German government has been heavily criticised for the slow pace of the rollout, in comparison to other countries such as the UK and Israel.
Is there an obligation for employers to offer vaccines to their staff?
Currently there is no obligation for employers to offer vaccines to staff, however the government plans that through a change in the vaccination regulation within the next few weeks, not only general practitioners but company doctors will be able to offer vaccinations. From June 2021 company doctors can be supplied with the vaccine.
What are the benefits of employees offering vaccinations to their staff?
Company doctors being able to offer vaccinations to employees will relieve pressure from general practitioners practices and vaccination centres. A company wide vaccination programme offers quick protection for the whole workforce, reducing the risk of infection in the workplace and thereby limits the chance of sickness in the workplace and operational difficulties because of that.
In addition, the company enables their employees to have easy access to vaccinations, and additional travel times to vaccinations are avoided as vaccinations are integrated into everyday work life.
The association of German company doctors (VBDW) could achieve the vaccination targets in Germany significantly faster with over 12,000 company doctors involved in the vaccination process. This approach has already been tried and tested with the flu vaccination, with many companies offering the vaccination to their employees annually.
Who pays for operational COVID-19 vaccine?
It is currently unclear how vaccinations in workplaces would be financed. The costs for vaccinations are normally from the federal government, however company doctors are not part of statutory medical care. It would be conceivable that in large companies, who have their own company doctors, the costs for the vaccination as a measure of occupational health and safety, would be taken over by the employer themselves.
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