The "Corona" issue will continue to be a significant concern for the general public and, more specifically, for employers for an extended period. It is precisely for this reason that employers must be familiar with and implement the pertinent regulations. Coinciding with the holiday season, the regulatory body in NRW has amended the Corona Protection Ordinance and the provisions regarding mandatory testing for employees returning from vacation.
We will explain what you need to consider.
What are employees returning from vacation required to do?
§ 7 para. 3 CoronaSchVO NRW (in the version valid from July 10, 2021) includes a specific regulation for employees returning from vacation for the period since July 1, 2021. If employees have been absent from work for at least five consecutive working days due to vacation or similar leave, they must, on their first working day, either:
– present a negative test certificate (citizen test or facility test) or
– during the first working day, undergo a documented supervised test.
If employees work from home after returning from vacation, the obligation to provide proof or undergo testing applies on the first day they are back at the workplace.
Are employees required to present a test or undergo one at the workplace after vacation?
Firstly, the testing obligation does not apply to fully immunized employees.
Furthermore, this regulation is mandatory for employees, constituting a compulsory ancillary duty stemming from the employment relationship. Should employees refuse, they must anticipate employment law consequences, potentially leading to warnings or even termination.
Moreover, employees who refuse face a penalty of up to €25,000 under § 23 para. 2 no. 4a alt. 1 CoronaSchVO NRW.
What must the employer ensure?
Employers must prepare for both potential alternatives. However, there is one aspect employers must address immediately:
The employer must immediately establish a procedure to record relevant absence times and initiate the necessary measures (checking or conducting tests).
Depending on the specific scenario, the following applies:
1. Verification of Test Results
– We are of the opinion that test results do not need to be verified by specially trained personnel. Trained personnel are only required for conducting tests or supervising self-tests in accordance with § 4 CoronaTestQuarantäneVO. What must be documented:
– Document the location, date, and time of the verification.
– Confirm that the employee and the person identified on the test certificate are identical.
– Whether the test result is negative.
– Finally, the employer should briefly assess whether the test certificate presents any indicators of potential forgery (e.g., a missing signature, incomplete information about the issuer of the test certificate). In our view, the employer is not required to conduct a comprehensive verification of whether the test certificate fully complies with all legal requirements.
2. Conducting a Test
– The employer must ensure that tests are conducted by qualified or trained personnel. Supervised self-tests performed by a qualified, trained, or instructed individual are also permissible. The professional qualification of the person or the completion of a training measure must be documented.
– Proper execution of the test.
– Documentation of the test and, if necessary, issuance of a test certificate for the employee.
– The resulting waste (e.g., test swabs, liquid, test strips) should not be marked with employee data and must be disposed of properly.
What must the employer document?
The documentation requirements for the employer depend on their specific obligations. In this regard, it is advisable to consult the catalog of fines in § 23 Abs. 2 Nr. 4a Alt. 2 CoronaSchVO NRW. According to this, the employer must ensure the verification of test certificates or the execution of tests:
1. Verify Test Results
The employer should document the following:
– Verifying person.
– Full name of the employee.
– Location, date, and time of verification.
– Test result.
– Name of the testing facility.
The employer is not obligated to document the test result itself, meaning to make a copy. This is neither stipulated by § 7 Abs. 3 CoronaSchVO NRW nor, in our opinion, is it necessary.
Employers should store records of test result verifications in a manner that allows them to issue a certificate of verification to employees upon request. Pursuant to § 23 Abs. 2 Nr. 4a Alt. 1 CoronaSchVO NRW, employees must be able to demonstrate that they have submitted their test result or have been tested by the employer. Consequently, employees are likely to have a claim against the employer for such a certificate.
2. Conduct Test
The employer should document the following:
– Person performing or supervising the test
– Full name of the employee.
– Name of the test/manufacturer
– Location, date, and time of verification.
– Test result.
Upon an employee's request, the employer is obligated to issue a test certificate in accordance with § 4 S. 2 CoronaTestQuarantäneVO. Consequently, it is recommended to store the information pertaining to the test's execution, adhering to the official template for the Certificate of a Positive or Negative Antigen Test for the Detection of SARS-CoV-2 Virus for Employees.
How long is the employer permitted or required to store the results of their checks?
Pursuant to Art. 13 para. 1 GDPR, personal data must be erased once it is no longer necessary. Neither the CoronaTestQuarantäneVO NRW nor the CoronaSchVO NRW stipulate specific retention periods for the control results. Otherwise, such provisions would be considered within the scope of Art. 13 GDPR.
From a purely epidemiological standpoint, test certificates are likely to remain valid for only a brief period. If employees do not exhibit any disease symptoms within a few days or weeks, the test result can be considered to have 'expired'.
Nevertheless, the employer must be able to demonstrate compliance with their obligations under § 7 Abs. 3 CoronaSchVO NRW. The data pertaining to the tests will no longer be necessary once the risk of a fine, due to the statute of limitations for prosecution, has elapsed.
Administrative offenses under the CoronaSchVO NRW are sanctioned in accordance with the Administrative Offenses Act (OWiG). Pursuant to § 31 para. 2 No. 1 OWiG, administrative offenses carrying a maximum fine exceeding fifteen thousand Euros are subject to a three-year statute of limitations. As per § 23 Abs. 2 Nr. 4a CoronaSchVO NRW, the maximum fine can be up to €25,000. Therefore, violations of § 7 Abs. 3 CoronaSchVO NRW become time-barred after three years.
We therefore deem it permissible and indeed necessary to retain the relevant documentation for a period of three years.
We are pleased to offer our services as consultants across the entire spectrum of IT law, as well as in labor law, including employee data protection.
GoldbergUllrich Attorneys at Law 2021
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
As of: 13.07.2021
