Even after the end of the epidemic situation of national significance, infection control measures remain necessary. For this reason, the legislature has introduced new regulations in Section 28b of the Infection Protection Act, which are effective immediately and will remain in effect through March 19, 2022.
What does the 3G rule mean?
Employees are only permitted access to workplaces if they are vaccinated, have recovered from COVID-19, or have recently been tested. Exceptions apply only if a test is administered on-site or a vaccination offer is accepted immediately.
What proof must vaccinated and recovered individuals carry with them when entering the workplace?
Vaccinated and recovered individuals must prove their status using either the yellow vaccination card, a vaccination certificate (app), or proof of recovery.
It is true that vaccinated or recovered employees are free to choose not to disclose this status to their employer and instead provide a negative test result daily as proof.
What proof must unvaccinated employees have with them when entering the workplace?
Anyone who cannot or does not wish to provide proof of vaccination or recovery must present a negative COVID-19 test to gain access to the workplace. A standard antigen test must be no more than 24 hours old, and a PCR test no more than 48 hours old.
According to the COVID-19 Protective Measures Exception Ordinance, the test must meet one of the following requirements:
- It took place on-site under the supervision of the person subject to the respective protective measure,
- it took place as part of workplace testing for occupational safety purposes by staff who possess the necessary training, knowledge, and experience,
- it was performed by a service provider (testing center).
It follows that the tests offered by the employer are not automatically suitable for providing the required proof. This is because the employer’s obligations do not extend to requiring that the tests mentioned there be conducted under the employer’s supervision, by qualified personnel, or by a service provider.
What applies to working from home?
According to the Infection Protection Act, individuals working from home are not subject to the proof requirements, as a home office is not considered a workplace within the meaning of the Workplace Ordinance. You can find more information on the so-called “work-from-home requirement” here.
Is the employer required to offer testing at the workplace?
The employer must offer tests at least twice a week to all employees who do not work exclusively from home.
As an exception, this testing requirement does not apply if the employer ensures equivalent protection for employees through other suitable protective measures or can demonstrate that equivalent protection is already in place.
Even vaccinated individuals and those who have recovered from COVID-19 are entitled to be offered testing, as it cannot be ruled out that they, too, may be carrying the virus and could transmit it.
However, the tests offered by the employer are not automatically sufficient to provide the proof required under the Infection Protection Act. This is particularly true in the case of so-called self-tests that are not conducted under supervision.
Who bears the cost of the tests?
With regard to the tests that the employer is required to offer twice a week under the Occupational Safety and Health Regulation, the employer remains responsible for covering the costs. With regard to the tests that employees need to gain access to the workplace, the employer is not obligated to cover the costs.
Any exceptions to this rule can only arise from specific (company) agreements.
Finally, under the Coronavirus Testing Regulation, citizens are entitled to free testing at least once a week, subject to the availability of testing capacity.
Is the time spent on testing compensable?
As a general rule, the time an employee must spend to provide the legally required proof of testing falls within their personal sphere and does not have to be compensated by the employer.
Different rules may apply to tests that the employer is required to offer under the SARS-CoV-2 Occupational Safety and Health Regulation and that the employee takes:
If the employer offers these tests exclusively within the workplace, they are, according to the prevailing view, considered working time for which compensation is due.
The fact that actual work is not being performed during this time is not decisive. It is an activity inextricably linked to the required work duties, which is “carried out” in the employer’s interest in such a way that the time spent is no longer at the employee’s free disposal. This time must therefore generally be compensated as working time.
The works council and the employer may also agree that the time spent on testing and monitoring shall be compensated as working time.
Must the employer compensate for the time spent undergoing checks at the factory gate?
In principle, this is not the case. However, an employee who is unable to start work on time solely because the employer’s screening measures cause significant delays in gaining access to the workplace—delays that could not reasonably have been anticipated to this extent—may have a claim against the employer for compensation for the lost working time.
Does the 3G rule also apply to field staff?
Yes. They may also be subject to additional 3G, 2G, or more stringent regulations if they wish to enter other employers’ workplaces or need to use accommodations.
For example, facilities such as hospitals generally require employers, employees, and visitors to undergo testing. This may apply, for instance, to technicians who install, maintain, or repair elevators in hospitals.
Anyone planning to stay overnight at a hotel must also comply with state-specific regulations.
Employees who perform their work on a construction site outside their own employer’s premises are also subject to the 3G rules at the workplace.
What applies to temporary agency workers?
The new legal regulations do not make any explicit statements regarding temporary agency workers. Therefore, they too must be vaccinated, have recovered from COVID-19, or have tested negative to gain access to the client company’s premises, and they must carry appropriate proof with them.
Practical considerations in particular suggest that the client company is also the employer of a temporary worker within the meaning of the Infection Protection Act, or at least can be authorized accordingly by the staffing agency.
Temporary agency workers are therefore advised to cooperate with the user company’s checks.
What happens to my data?
The employer may process proof of vaccination, recovery, or a negative test result only to the extent necessary for the purpose of verifying compliance. In addition, the employer is permitted to use the data to adapt the workplace hygiene plan. The principle of purpose limitation applies.
Processing for any other purpose is not permitted. If the employer violates the General Data Protection Regulation, they may face fines and claims for damages.
This data must be deleted no later than six months after collection. This deletion period, which is expressly stated in the Infection Protection Act, is a maximum period. Under general data protection law, the data must therefore be deleted earlier if its continued storage is not necessary.
What happens if employees refuse to provide 3G proof?
Employees who are unable to perform their work due to a lack of 3G proof generally lose their right to wages. In addition, they may face consequences under labor law, such as a written warning or termination.
What if there are uncertainties regarding the correctness of the company’s procedures?
IG Metall members can contact their local IG Metall office to seek legal advice.
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