Employers and the compulsory test for holiday returnees

The issue of "Corona" will continue to occupy the population in general and employers in particular for a long time to come. For this very reason, it is important for employers to know and implement the regulations that affect them. Fittingly for the holiday season, the North Rhine-Westphalia legislature has adapted the Corona Protection Ordinance and the regulations on the compulsory testing of holiday returnees.

We explain what you need to pay attention to.

What are holiday returners obliged to do?

§Section 7 (3) of theCoronaSchVO NRW(in the version valid from 10 July 2021) contains a special regulation for holiday returnees for the period since 01.07.2021. If employees have not worked for at least five working days in succession due to holidays and comparable leaves of absence, they must on the first working day either

- present a negative test certificate (citizen test or facility test) or

- perform a documented supervised test during the first day of work.

If employees work in a home office after returning from leave, the verification or testing requirement applies on the first day employees are back at work.

Do employees have to submit a test after leave or take it at work?

First, the testing requirement does not apply to fully immunised workers.

Moreover, the regulation is obligatory for employees, namely as a compulsory secondary obligation arising from the employment relationship. If employees refuse, they must expect consequences under labour law up to and including a warning or dismissal.

Furthermore, refusing employees are liable to a fine according to § 23 Para. 2 No. 4a Alt. 1 CoronaSchVO NRW, a fine of up to € 25,000.

What must the employer ensure?

The employer must prepare for both possible alternatives. One thing, however, the employer must already prepare:

The employer must immediately establish a procedure to record the relevant absence time and initiate the necessary measures (control or implementation of the tests).

Depending on the variant, the following applies:

1. control of the test result

- We are of the opinion that the test results do not need to be checked by separately trained personnel. Trained personnel are only required for the performance of the tests or supervision during self-testing according to § 4 CoronaTestQuarantineVO. What must be documented:

- Document the place, date and time of the inspection.

- That the employee and the person on the test certificate are identical.

- Whether the test result is negative.

- Finally, the employer should briefly check whether the test certificate provides grounds for falsification (e.g. through a missing signature, missing information on the issuer of the test certificate). In our opinion, the employer does not have to fully check whether the test certificate complies with the legal requirements.

2. carrying out a test

- The employer must have the test carried out by competent or trained personnel. Self-tests under the supervision of a competent, trained or instructed person are also permissible. The person's expertise or the implementation of a training measure must be documented.

- Proper performance of the test.

- Document the test and issue a test certificate to the employee if necessary.

- The resulting waste (e.g. test sticks, liquid, test strips) should not be provided with employee data, and should be disposed of properly.

What must the employer document?

What the employer must document depends on its specific obligations. It is worth taking a look at the catalogue of fines in § 23 para. 2 no. 4a alt. 2 CoronaSchVO NRW. According to this, the employer must ensure that the test evidence is checked or that the test is carried out:

1. check test results

The employer should document the following:

- Controlling person.

- Name and first name of the person employed.

- Place, date and time of the check.

- Result of the test.

- Name of the test site

The employer is not obliged to document the test result itself, i.e. to make a copy. This is not provided for by § 7 para. 3 CoronaSchVO NRW and, in our opinion, is not necessary.

Employers should store the check of the test result in such a way that they can issue a certificate of the check to the employed persons upon request. According to § 23 para. 2 no. 4a Alt. 1 CoronaSchVO NRW, employees must be able to prove that they have submitted their test result or have had themselves tested by the employer. In this respect, employees should have a claim against the employer for a corresponding certificate.

2. carry out test

The employer should document the following:

- Person administering or supervising the test

- Name and first name of the person employed.

- Name of the test/manufacturer

- Place, date and time of the check.

- Result of the test.

At the request of the employee, the employer must issue a test certificate according to § 4 p. 2 CoronaTestQuarantineVO. For this reason, it might be advisable to store the information on the performance of the test in accordance with the official model for the certificate on the presence of a positive or negative antigen test for the detection of the SARS-CoV-2 virus for employees.

For how long may or must the employer store the results of its inspection?

According to Art. 13 (1) DSGVO, personal data must be deleted when it is no longer needed. Neither the CoronaTestQuarantäneVO NRW nor the CoronaSchVO NRW contain specifications for a storage period of the inspection results. Otherwise, this would have to be taken into account within the framework of Art. 13 DSGVO.

From a purely epidemiological point of view, the test evidence should only be meaningful for a short time. If the workers do not show any symptoms of the disease within a few days or weeks, the test result is likely to be "used up".

Nevertheless, the employer must be able to prove that he has complied with his obligations under § 7 para. 3 CoronaSchVO NRW. At the latest when a risk of a fine has passed due to the statute of limitations for prosecution, the data on the test is no longer needed.

Administrative offences under the CoronaSchVO NRW shall be punished in accordance with the German Administrative Offences Act (OWiG). Pursuant to section 31, paragraph 2, no. 1 of the OWiG, administrative offences punishable by a fine of a maximum of more than fifteen thousand euros are subject to a limitation period of three years. According to section 23, paragraph 2, no. 4a CoronaSchVO NRW, the maximum fine is up to €25,000. Thus, violations of Section 7 (3) CoronaSchVO NRW become time-barred in three years.

We therefore consider it permissible and also necessary to keep the corresponding evidence for three years.

We are happy to provide advice in the entire area of IT law as well as in labour law, including employee data protection.

GoldbergUllrich Lawyers 2021

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

Lawyer and

Specialist lawyer for information technology law

Status: 13.07.2021