Read the newest update from November, 18th, 2021 here.
Vaccinated, tested or recovered" also applies in the workplace since November 1st 2021. The exact modalities were laid down last week in the 3rd Covid-19 Measures Regulation. The control obligation of the employer contained therein is in a tension between labour and data protection law, leaves many questions unanswered and leads to a dilemma in the practical implementation.
New regulation & exceptions
What is clear is that since November 1st 2021, employees, owners and operators may only enter places of work where physical contact with other persons cannot be ruled out if they have a 3G certificate. This is the case if there is direct customer contact at the place of work or contact with other employees cannot be ruled out. Thus, the 3G rule will apply to almost all companies in the future.
Currently already existing stricter general provisions, such as a 2G or 2.5G rule in nightclubs and discos, remain in place for customers, but for employees the more specific regulation for places of work, i.e. 3G, applies. However, the regulation provides, for example, that providers of mobile nursing and care services may only enter external workplaces if - in addition to the 3G certificate - they wear a face mask in closed rooms when in contact with customers.
The 3G rule also applies to entering external workplaces, but not in the home office. Also exempt from the 3G rule at the workplace are those persons who have no more than two physical contacts per day, which take place outdoors and last no longer than 15 minutes each. This could apply, for example, to truck drivers, foresters, etc.
Detection & Control
It is also undisputed that the 3G certificate is a prerequisite for entering the workplace and that both employer and employee are responsible for compliance with the 3G rule at the workplace.
- Employees must keep the 3G certificate available for the duration of their stay at the place of work and present it in the event of an inspection.
- The owner of the permanent establishment or place of work is obliged to carry out checks. However, no continuous control in the sense of an entry control is required. The extent of the control obligation depends on the circumstances of the individual case. Depending on the size and structure of the business, the number of employees, spatial and organisational conditions, etc., appropriate notices, spot checks, notices, oral and written instructions, etc. are sufficient. In the case of random checks, however, these must be effective checks within the meaning of the Covid-19 Measures Act. This will be the case if checks either regularly affect individual persons (selected at random) or take the form of "focus checks" (sporadic continuous checks).
- The health authority carries out focus inspections to check both that individual employees have 3G certificates and that employers are complying with their duty to carry out inspections.
- Sanctions
Employees who enter or drive into the place of work without 3G certificate are committing an administrative offence and face a fine of up to EUR 500.
Owners of a permanent establishment or place of work who fail to ensure that the permanent establishment or place of work is not entered or driven upon contrary to the conditions laid down in the regulation also commit an administrative offence and are liable to a fine of up to EUR 3,600.
Data determination & data processing
The 3rd Covid-19 Measures Regulation authorises the holder of the permanent establishment or place of work, in fulfilling his duty to carry out checks, to determine certain personal data (name, date of birth, validity or period of validity of the certificate and barcode or QR code) and to establish identity. However, the reproduction or storage of the certificates and the personal data contained in the certificates is prohibited, with the exception of the collection of contact data (name, telephone number, e-mail address). According to the Regulation, the basic rule for employees' personal health data is therefore "only check, not store."
However, there are different legal opinions regarding the permissibility of data processing. Nevertheless, it is undisputed that in order to prove compliance with the control obligation and thus to avoid the threat of fines, documentation of the controls carried out is indispensable.
However, since the DPA and the GDPR provide for extremely severe fines, the principles for the processing of personal data, such as data economy, purpose limitation and storage limitation, must also be taken into account. This means that only strictly necessary data should be processed for the specified and legitimate purpose. In addition, the number of persons having access to these data should be limited and the data should be deleted as soon as possible. In addition, the general obligations under data protection law, such as the obligation to provide information and the inclusion of data processing in the register of processing activities, must be complied with.
In addition, we recommend concluding a works agreement or, in companies without a works council, obtaining the consent of all employees.
Transitional arrangement
In principle, the 3G rule at the workplace applies since November 1st 2021. However, the regulation provides for a 14-day transitional arrangement: Employees, owners and operators are obliged to wear an FFP2 mask at the workplace at all times in the absence of a 3G certificate. From November 15th 2021, this option will no longer be available, from that time onwards the 3G certificate will be a mandatory requirement for entering the place of work.
Planned modification
Although the 3G rule at the workplace has only been in force for a few days, the next tightening is already on the cards in view of the high incidence of infections. At the end of the transitional period, i.e. from November 15th 2021, the 3G rule is to become a 2.5G rule at the workplace. This means that in the future, only vaccinated, recovered or persons with a negative PCR test will be allowed to enter the workplace; antigen tests will no longer be sufficient. An amendment to the regulation in this regard remains to be seen.
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