3G in the workplace - We tell you what to look out for

The Covid19 pandemic is currently worse than ever. With an amendment to the Infection Protection Act, the legislator has, among other things, adapted the regulations for protection against covid19 in companies.

We show you what to look out for.

What are the general rules? What do employers have to observe?

  • In their workplaces, employers must offer rapid antigen or self-testing at least twice a week for all workers in attendance. There are exceptions for fully vaccinated workers or workers recovering from COVID-19.
  • Employers must create company hygiene concepts or adapt existing concepts and make them accessible to employees.
  • The mask requirement remains in place wherever there is insufficient protection through technical or organisational measures.
  • Company-related personal contacts are to continue to be restricted.
  • As far as possible, rooms should not be used by several people at the same time.
  • Protection against infection must be maintained during break times and in break areas.
  • Employers should provide information on vaccination opportunities, support company doctors in offering vaccinations and release employees for out-of-company vaccinations.
  • Employees and employers may only enter the workplace if they have been vaccinated or have recovered or carry a current certificate of a negative coronary test.
  • Employers must check whether employees comply with the above obligation and document these checks.
  • The employer must offer home office to employees for office work or comparable work. Employees must accept this offer in principle.

Do the 3G rules also apply in the home office?

No, the 3G rules do not apply in the home office.

Do the 3G rules apply without exception during operation?

No. Without complying with the 3G rule, workers may enter a workplace to take up an employer's offer of testing or to be vaccinated.

How does the employer monitor compliance with the 3G rules?

For vaccinated employees, the valid vaccination status only needs to be checked and documented once. The same applies to convalescents. In the case of a test certificate, the validity of the test must be checked when entering the workplace for the first time.

Which costs for tests are covered by the employer?

The employer must offer employees antigen rapid or self-tests free of charge at least twice a week. BUT: The employer is not obliged to offer such tests to his employees to comply with the 3G rules! He can do so, but he does not have to. According to the will of the legislator, the workers themselves have to provide valid 3G evidence.

Does the time spent testing count as working time?

No, the time spent testing does not count as working time subject to remuneration. The employer can, of course, make other arrangements.

What happens when workers do not want to disclose their 3G status?

Providing proof of 3G status is one of the employees' obligations under labour law. If they do not provide this proof and as a result do not perform their work, there is usually a culpable violation of obligations under labour law. This is likely to be punished initially only with a warning. If there is a persistent refusal to provide proof of 3G status, termination without notice is also likely to be justified. If the employee does not work because of a lack of 3G proof, he or she is also not entitled to wages.

How high can fines be?

Violations of the obligation to check and carry 3G evidence can be punished with a fine of up to € 25,000.

Do you have to consider the issue of data protection?

Yes, because information on vaccination, convalescent or test status is special category personal data ("health data"). Their processing is permissible according to Art. 9 para. 2 lit. i. DSGVO in conjunction with. § Section 28b IfSG to the extent necessary.

For reasons of data economy, you should store as little information as possible. For the necessary access controls according to § 28b IfSG, it should be sufficient if a corresponding note with date is made next to the name of the employee ("vaccinated", "recovered" or "tested"). Recording detailed information on the vaccination, convalescence or test status, on the other hand, is probably not permissible.

The employee may voluntarily deposit this information with the employer. If the evidence is to be submitted voluntarily electronically (e.g. by upload, by email or by WhatsApp), the employer should definitely offer an alternative, e.g. by handing it over or making a copy in the HR department). On the other hand, a supervisory authority might have doubts about the voluntary nature.

Furthermore, the employer has no right to information regarding vaccination or convalescent status. Thus, the employer may not force workers to disclose this information. In particular, the IfSG itself does not provide a legal basis for an employer's right to information from employees regarding their vaccination status. This right to information simply does not exist. Inexplicable, but that is how it is.

However, at least in cases of continued payment of wages in the event of illness, employers will at least be able to ask about vaccination status.

Legislators have avoided explicit clarification of the dispute over whether workers must now provide vaccination status information to their employers and have now chosen another option: Access control regulation. We refer to the above.

Finally, the employer must also inform employees about the processing of health data. The required information on the purpose and nature and scope of the data processing should be provided in a separate document. So, as an employer, you must provide data protection notices to the employees.

Are you sufficiently prepared?

These topics are only a small but important part of the extensive regulations of the Infection Protection Act. As always, it depends on the individual case in the company.

If you have any questions on this topic or need the required privacy statement for the processing of health data, please contact us. We will help you to master the operational challenges!

As you are aware, we are happy to act as advisors in the entire field of labour law, employee data protection and data privacy.


GoldbergUllrich Lawyers 2021

Julius Oberste-Dommes LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law