COVID-19: new Occupational Health and Safety Regulation for Germany

Update 12 April 2022

A new version of the SARS-CoV-2 Occupational Health and Safety Regulation was entered into on 20 March 2022, with the modified measures required.

The basic protective measures are no longer directly imposed in the SARS-CoV-2 occupational health and safety regulation but, are determined by the companies as a result of the risk assessment by means of the company hygiene concepts. Employers now must consider in particular whether and which of the listed measures are necessary to ensure the safety and health of employees. In doing so, both the local infection incidence and the activity-specific infection hazards, e.g. spatial conditions, must be taken into account. The Regulation lists the following measures:

(i) Offering one free covid test per week for employees who do not work exclusively from home,
(ii) avoidance or reduction in the simultaneous use of rooms by more than one person,
(iii) provision of medical face masks.

Other rules are also part of a hygiene concept see below.

It is not legally permissible to ask employees about their vaccination status. Exceptions apply to day-care centres, schools and care facilities. Consequently, employers are not allowed to exclude employees from returning to the office if they have not been vaccinated. From 01 November 2021, employees who are in an officially ordered quarantine are no longer entitled to compensation benefits, unless they have been vaccinated.

Update 17 March 2022

The new Corona Occupational Health and Safety Regulation

The rules that will apply in the workplace from 20 March 2022 (until 25 May 2022) have now officially been published by the Federal Ministry of Labour and Social Affairs. As regards the basic protection measures, the Regulation provides a slightly deviating approach from the previously published draft regulation:

The basic protective measures are no longer directly imposed by the SARS-CoV-2 occupational health and safety regulation but, are now to be determined by risk assessments using company hygiene concepts. Employers now have to consider in particular whether and which of the listed measures are necessary to ensure the safety and health of their employees. In doing so, both the local infection incidence rates and the activity-specific infection hazards, eg spatial conditions, must be taken into account. The Regulation lists the following measures:

(i) offering one free covid test per week for employees who do not work exclusively from home,
(ii) avoidance or reduction in the simultaneous use of rooms by more than one person, and
(iii) provision of medical face masks.

Other rules can also be part of a hygiene concept. The new version of the Regulation still refers to the SARS-CoV-2 occupational health and safety rule, which serves as an interpretation aid. The basic protective measures already described in more detail above are set out in this rule. In addition, it contains information on contact restrictions, hygiene and disinfection, ventilation and a number of other possible (and recommended) components of a hygiene concept.

Furthermore, employers remain obliged to release employees from work for doctor's appointments to receive vaccination.

Update 15 March 2022

A variety of Covid-rules are only in effect until 19 March 2022. The workplace rules applicable after 20 March have so far only been communicated cautiously and with drafts.

No obligation to work from home

In Bund-Länder talks (Federal-state-talks) in February 2022, it was decided to gradually roll back restrictions. Re-opening will take place in three steps, with the third step starting from 20 March 2022 and will include the end of the working from home obligation. As a result, companies will no longer be obliged to allow their employees to work from home from 20 March 2022.

No control of "3G status“

The obligation, or rather the right, to check the "3G status" (vaccinated, recovered or tested) of employees before they enter the workplace will also cease to apply from 20 March 2022. There will then no longer be a legal basis for processing this particular personal health data. Whether processing of the data with the consent of the employees is nevertheless permitted is disputed. A large number of scholars are of the opinion that employee consent is not permissible. As a consequence, according to this view, the processing of "3G status" is also no longer possible. If you are currently tracking 3G status in the workplace, please do let us know if you would like to speak to our German colleagues regarding this development/issue.

The new Corona Occupational Health and Safety Regulation

The rules that will apply in the workplace from 20 March 2022 have not yet been officially decided and communicated. The only information currently available is the draft of the new Corona Occupational Health and Safety Ordinance (Ordinance) (available here in German). This draft has not yet been shared by the Federal Ministry of Labour and Social Affairs itself and should therefore be treated with caution. However, since much of the content is consistent with what other sources are saying about new occupational health and safety rules, companies can at least expect the rules detailed below or similar to apply as of 20 March 2022:

As is currently the case, companies must conduct risk assessments. On this basis, a hygiene concept must be drawn up that defines and implements the necessary protective measures to protect against infection in the workplace. To this end, the Ordinance lists various measures that are referred to as basic protection measures and are considered to be particularly important and proven. These include, in particular, the AHA+L rules (distance, hygiene, daily routine with mask and ventilation).

Companies should include in their hygiene concept a reduction in the simultaneous use of rooms by more than one person and the maintenance of a safety distance of 1.5 meters. If it is not possible to maintain the safety distance, masks should be worn. These masks are to be provided by the company.

Furthermore, all employees must be offered a Covid test twice a week. The company continues to be responsible for providing these tests. In addition, companies are still required to allow employees to receive a Covid vaccination during working hours.

Other rules can also be part of a hygiene concept. The regulation refers to the SARS-CoV-2 occupational health and safety rule, which serves as an interpretation aid. The basic protective measures already described in more detail above are set out in this rule. In addition, it contains information on contact restrictions, hygiene and disinfection, ventilation and a number of other possible (and recommended) components of a hygiene concept. The occupational health and safety regulation can be found here.

The rules in the Ordinance are initially effective until 25 May 2022.

Rules in the federal states

According to the Ordinance, the regulations of the federal states remain unaffected. However, with regard to occupational health and safety, the federal states follow the Ordinance quite closely. Hygiene concepts that are acceptable under the Ordinance are also likely to be so under the rules of the federal states. States such as Hesse, Bavaria, North Rhine-Westphalia and Hamburg explicitly refer to the Ordinance on their websites.

Update 18 January 2022

After Bund and Länder had recently agreed to amend their isolation and quarantine rules on 7 January 2022, Bundestag and Bundesrat have now approved the required amendments to the German Protection Measures Exemption Ordinance (COVID-19 Schutzmaßnahmen Ausnahmenverordnung). The amended Ordinance provides for a basis for the Länder to adapt their quarantine rules in accordance with the resolutions taken by Bund and Länder. Several federal states have already done so.

Quarantine rules have now been amended along the following lines:

• Exemption of close contact quarantine for “boosted” individuals: Contact persons of infected persons are exempt from mandatory quarantine if they already received the “booster” vaccination, have recently been fully vaccinated, have recovered or are both vaccinated and recovered.
• Opportunity to end quarantine early for others: Contact persons of infected persons who have not received the “booster” vaccination, recently received fully vaccinated status or recovered recently from Covid 19 have to quarantine for 10 days. Quarantine may be ended earlier in case of a negative Covid 19 test (PCR test or certified antigen test) carried out after 7 days at the earliest. The same applies to infected persons, regardless of their vaccination/booster vaccination status etc.
• Deviating rule for nursing staff: Employees of hospitals, nursing homes and institutions for integration assistance may end isolation after seven days following confirmation of infection if they have been symptom-free for at least 48 hours and can present a negative test result (PCR test required).

In particular Hesse, North Rhine-Westphalia and Bavaria have already amended their quarantine regulations accordingly, with minor differences in the details:

• Regarding the requirement to quarantine, Hesse and North Rhine-Westphalia distinguish between persons who had close contact to infected persons and household members. Household members of infected persons must automatically quarantine. Persons who had close contact to an infected person are “urged” to quarantine but are however not expressly obligated, unless a respective order by the health authorities has been issued. In Bavaria, no such distinction applies but quarantine is required upon order of the health authorities.
• In Bavaria, a further exemption applies for nursing staff – respective employees can end their isolation/quarantine and return to work also by carrying out antigen tests before the start of the working day for 5 consecutive days (the test must in this case be carried out by a healthcare professional). As an alternative, they can also choose to once present a negative PCR test result as set out above.

Update 11 January 2022

Increasing rates of Covid (notably in Frankfurt) are leading to increased restrictions but no major changes from an employer perspective, please see below:

New Supplementary Federal Regulations dated 7 January 2022

• Surgical Masks must be worn wherever people gather in a confined spaces. FFP2 masks are strongly recommended in shops and public transportation.
• At the workplace, 3G regulation (access only for vaccinated, recovered or tested) and the home office obligation remain in place.
• In restaurants, for the time being nationwide 2G+ (access only for vaccinated or recovered individual with a negative Covid test).
• In clinics, nursing homes and similar institutions, employees must provide proof of being vaccinated or recovered by 15 March 2022.

Those are nationwide minimum standards, the federal states may however decide more restrictive rules.

The Chancellor and Federal states will reconvene on 24 January 2022 to reconsider the measures.

Frankfurt is a Corona “Hotspot” with effect from 8 January 2022

In Hesse, municipalities must adopt stricter measures where the 7-day incidence exceeds 350 for 3 consecutive days – so called “hot spot” measures. Frankfurt exceeded the limit at the end of last week. Therefore, currently:

• Surgical masks are compulsory in the city centre and on selected streets.
• 2G+ in leisure and cultural facilities.
• Alcohol ban outside in large parts of the city.
• For events (more than 10 people) the following applies: Inside 2G-Plus. Outside 2G.
  • This does not apply to meetings of persons who need to work together directly for professional, official, educational, care-related or business reasons (eg court hearings). For those meetings the basic corona-protection rules apply.
  • For work-related meetings of employees regularly working together, the 3G regulations at the workplace and home office obligation remain in place.
• Those regulations will expire on 13 January 2022.

Continued Discussions on potential compulsory vaccinations

The German Chancellor and the federal states are considering introduction of a general compulsory vaccination. However, no timetable for the introduction of compulsory vaccination has been envisaged, and it is questionable if this will be in force prior to March 2022.

Update 3 December 2021

Although there are currently no immediate changes to the already rolled out “3G” rules at the workplace (ie general rule of home office work wherever possible from a business and personal perspective and only access to the office with valid vaccination, recovery or testing proof), there have, however, been some further stricter rules put into place for specific businesses (please see overview below).

Also, there is a current discussion on a general vaccination obligation, first for the healthcare/nursing sector and later for the general public. The announced vaccination obligation for staff in hospitals, care facilities and outpatient care will apply from 16 March 2022. All employees already working today and all new employees starting on 01 January 2022, will have to show proof of complete Corona vaccination by 15 March 2022 at the latest. Consequently, if approved by parliament, a general vaccination requirement for the general public will likely come into effect by March 2022 at the earliest.

1. In future, the 2-G rule (only access with valid proof of vaccination or recovery) will apply to visits to restaurants, cinemas, theaters and other leisure facilities. In addition, an up-to-date test - ie, 2-G plus - may even be required. Even in stores, with the exception of those for daily needs such as food, only vaccinated or recovered persons will now be allowed. This applies regardless of infection incidence. Stores must monitor compliance with the rule. The federal-state roundtable with outgoing Chancellor Angela Merkel (CDU) and her designated successor Olaf Scholz (SPD), as well as the state premiers, also decided to significantly reduce the number of spectators for regional sports, cultural and similar major events. In the future, a maximum of 30 to 50 percent of the seating capacity may be used. However, indoors there may be a maximum of 5,000 visitors and outdoors a maximum of 15,000. Full soccer stadiums are no longer possible for the time being.

2. Private gatherings in public or private spaces attended by unvaccinated and unrecovered persons are to be limited to the individual's own household and a maximum of two persons from another household, according to the resolution. Children up to the age of 14 are exempt. Spouses, cohabiting partners and partners in a non-marital partnership are considered to be one household even if they do not share a residence. The regulation does not apply to private gatherings attended exclusively by vaccinated and convalescent persons.

3. In counties with a seven-day incidence of more than 350, a limit of 50 persons (vaccinated and convalescent) indoors and 200 persons (vaccinated and convalescent) outdoors applies to private parties and gatherings. The sale of firecrackers and fireworks on New Year's Eve will be prohibited this year, as it was last year. Compensation is planned for affected companies as part of planned economic aid. Nightclubs will have to be closed in the event of high Corona infection rates due to the risk of infection. This will apply from an incidence of 350 new infections per 100,000 inhabitants within seven days. In schools, masks are generally compulsory for all ages.

Update 22 November 2021

The German Parliament has approved the already expected amendments to the Infection Protection Act (Infektionsschutzgesetz) and the Bundesrat, i.e. the representative body of the Länder (German Federal States) is to grant its required approval. The new rules shall apply from end of this week.

1. "3G obligation” at the workspace and control obligation for the employer:

   a. Employers and employees shall only be allowed to enter their workplaces at the company’s premises if they are vaccinated, recovered or tested and carry proof of vaccination, proof of recovery or proof of testing (rapid test must not be older than 24 hours old, PCR tests must not be older than 48 hours).

   b. Companies shall be obliged to control the proof of vaccination, recovery or tested status of their employees, before the access to the working place is granted. The necessary health data can be processed for this purpose. The state of vaccinated and recovered employees can be documented in order to avoid daily checks – regarding recovered employees, the end date of their recovered-status (expiring 6 months after the Covid infection) should then also be documented. However, employees should have their proof document at hand in case of controls of the authorities. The data are to be deleted after 6 months at the latest.

2. Return of the home office obligation:

   In case of office work or comparable activities, the employer must offer the employees to carry out work activities at their home office if no compelling operational reasons exist to the contrary (e.g. system, IT or security requirements). Employees must accept this offer unless there are reasons for them not to do so. Employees can refuse to work at home if, for example, there is a lack of space, disturbances by third parties or insufficient equipment. The requirements for exceptions on the side of employers and employees remain the same as during last winter.

Update 19 November 2021

On 19 November 2021, the already expected amendments to the German Infection Protection Act (Infektionsschutzgesetz) were approved by the Bundesrat, ie the representative body of the Länder (German Federal States), after having been adopted by the German parliament (Bundestag) yesterday. The new rules shall apply from next week (calendar week 47). Currently, it is provided that these rules apply longest until 19 March 2022.

1. "3G obligation” at the workspace and control obligation for the employer:

   a. Employers and employees shall only be allowed to enter their workplaces at the company’s premises if they are vaccinated, recovered or tested and carry proof of vaccination, proof of recovery or proof of testing (rapid test must not be older than 24 hours old, PCR tests must not be older than 48 hours). This is commonly known as “3G”- rule in Germany, an acronym for “geimpft, getestet, genesen” (vaccinated, tested, recovered).

   b. Companies shall be obliged to control the proof of vaccination, recovery or tested status of their employees, before the access to the working place is granted. The necessary health data can be processed for this purpose. The state of vaccinated and recovered employees can be documented in order to avoid daily checks – regarding recovered employees, the end date of their recovered-status (expiring 6 months after the Covid infection) should then also be documented. However, employees should have their proof document at hand in case of controls of the authorities. The data are to be deleted after 6 months at the latest.

2. Return of the home office obligation:

   In case of office work or comparable activities, the employer must offer the employees to carry out the work activities at their home office if no compelling operational reasons exist to the contrary (e.g. system, IT or security requirements). The employees have to accept this offer unless there are reasons for them not to do so. Employees can refuse to work in a home office if, for example, there is a lack of space, disturbances by third parties or insufficient equipment. The requirements for exceptions on the side of employers and employees remain the same as during the last period of the home office obligation.

For more information on the new changes to the German Act Against Infectious Diseases, see our article Employers obliged to process vaccination status of employees.

Update 15 November 2021

Stricter 3G-workplace rules and home office obligations expected to be decided at the end of this week and to enter into force in the course of next week: The German Federal Ministry of Labour intends to introduce a 3G rule at the workplace (allowing access only for employees who are either vaccinated, recently recovered or tested) and a return to mandatory home office. A draft amendment to the Infection Protection Act has been presented by the ministry and the measures are expected to be approved by the federal parliament (Bundestag) at the end of this week and likely enter into force in the course of the next week. These new regulations are likely to be limited until 19 March 2022.

1. 3G obligation at the workspace: employers and employees shall only be allowed to enter their workplaces where physical contact between employers and employees or with third parties cannot be excluded if they are vaccinated, recovered or tested and carry proof of vaccination, proof of recovery or proof of testing (rapid test must not be older than 24 hours old, PCR tests must not be older than 48 hours).

2. Supervision of 3G obligation: Companies shall be obliged to control the proof of vaccination, recovery or tested status of their employees. However, it is currently unclear whether employers will be granted the express right to request information on the vaccination/recovery/tested status from their employees.

3. Return of the home office obligation: It is intended to reintroduce a home office obligation where possible. In case of office work or comparable activities, the employer shall allow the employees to carry out these activities at their home unless there are compelling operational reasons to the contrary. The employees shall accept this offer unless there are reasons for them not to do so. Such reasons may exist if business operations would otherwise be significantly restricted or could not be maintained at all. According to the draft, employees can refuse to work in a home office if, for example, there is a lack of space, disturbances by third parties or insufficient equipment.

Update 11 November 2021

An update for Frankfurt/Hesse:

Individuals who have no certificate of vaccination or that they have recovered, and who regularly come into contact with external parties (such as customers/clients) in the course of their work must undergo the tests offered by the employer (free of charge) or have other rapid antigen tests performed twice a week.

Consequently, a general 3G (vaccinated, tested, recovered) requirement at the workplace therefore still does not exist in Hesse – unlike in Bavaria, for example (see below) – and only applies to operations in which employees have contact with external persons (such as customers/clients).

Proof of the tests (a vaccination certificate/ certificate of recovery) must be kept for at least two weeks and must be presented to the authorities if required. Those who fail to take a test, fail to have a test performed, or fail to provide evidence of a test are in breach of the regulations and may be subject to a fine of up to €25,000.

The obligation to wear masks will continue to apply for the interior areas of all workplaces. This obligation does not exist in areas that are not accessible to the public, provided that a distance of 1.5 meters from another person can be safely maintained.

Update 9 November 2021

The Corona regulations in the German state of Bavaria have been tightened:

• Businesses with more than ten employees may only grant access to employees, if they have been vaccinated, recovered or tested.
• If persons are not vaccinated or recovered, they must present a negative test twice a week. The employer is obligated to check the proof of vaccination, recovery or test to be presented.
• This regulation applies to everyone who has contact with others at work, whether customers or colleagues.
• Employees working from home are excluded.
• Employees who work in retail or in local public transport are also excluded.

In addition, masks are still mandatory at the workplace unless a minimum distance of 1.5 meters can be maintained.

Please do let us know if you would like detailed advice from our colleagues in Germany.

Update 3 September 2021

According to German news outlets the government parties reached an agreement yesterday evening on the hot topic of vaccination status enquiries. As part of the amendment to the German Infection Protection Act, employers will now be entitled to demand proof of vaccination or recovery status from employees if and to the extent that this is necessary to prevent the spread of the coronavirus disease. However, this will only cover the health, care and education sectors to protect vulnerable groups as well as at-risk facilities where large numbers of people are in close quarters. The introduction of a general right to information on the vaccination status, as demanded by employers' associations, seems to be off the table. The amendment is expected to be discussed in the health committee of the Bundestag as early as today and to be passed in the Bundestag next week. Further detail is available here.

Update 2 September 2021

A new federal occupational health and safety regulation has been published. The amended regulation enters into force on 10 September 2021 and (as expected) provides for the following:

• Continued obligation of employers to offer Covid-19 tests to employees twice a week. The time period for retaining proof of procurement regarding the tests has been extended until 24 November 2021.
• A duty for employers to release employees from work for doctor’s appointments to receive their vaccines. Employers also have to support company doctors (organisational and staff support) who carry out Covid-19 vaccinations. In the context of occupational health and safety instructions, employees must be informed about health risks of a Covid-19 infection and about the possibility of protective vaccinations.
• In the context of risk assessment and hygiene concepts, it has been clarified that when determining and implementing occupational infection protection measures, employers can take into account any vaccination or recovery status of their employees that is known to them. The regulations do not provide for a statutory right to inquire to the vaccination status of employees.

The latest version of this regulation applies until 24 November 2021.

Update 16 August 2021

At a meeting of the Länder and the Federal government on 10 August 2021, only very general updates on the management of the CoVid19 pandemic were decided. This decision currently only provides for a general plan to extend and adapt the present Occupational Health & Safety Ordinance without any further details.

Consequently, for the time being, the present Occupational Health & Safety Ordinance will remain effective at least until its expiration on 10 September 2021, which provides for the employers’ obligations to prepare/update company hygiene concepts and to make test offers to employees attending the office. The latter is being strongly criticised by German Employers' Associations as the government decided to end all free of charge citizen test offers as of 11 October 2021 but it is expected that the test offer obligation by employers shall be extended beyond that date.

Furthermore, a home office offer obligation in case of an incidence level over 50 has been discussed by the German Labour Minister Hubertus Heil.

In Frankfurt/Hesse, the current local Covid regulations will remain effective until the 19 August 2021, and we expect an update specifically for Frankfurt/ Hesse in due course.

Update 2 August 2021

The German government has issued a new ordinance to limit the further spread of the pandemic which entered into effect on 1 August 2021:

• In principle, all travellers age 12 or older entering Germany, must provide a negative Covid-Test, medical proof of a past Covid infection or of full vaccination.
• There will only be two instead of three different categories of countries with increased infection risks: high risk areas and virus variant areas.
• Travellers must register upfront with the online portal of the German government – they will particularly have to provide personal data and the place where the required quarantine will be observed.
• Travellers entering from a virus variant area will always have to provide a negative test, irrespective if fully vaccinated or recovered from an infection.
• Travellers entering from a high-risk area or virus variant area (if they have been in such areas within the last 10 days prior to entering Germany – not only transit without stop) must observe a strict quarantine upon their own costs:
  • Virus variant areas: strict 14-day quarantine; or
  • High risk areas: 10-day quarantine which can be shortened if the competent authorities are provided with a negative test, proof of past infection recovery or full vaccination proof.
• There will be random inspections; border inspections for all travellers are currently not envisaged.

Update 12 July 2021

One state requiring employers to verify negatives tests of employees returning from holiday

North Rhine Westphalia has imposed a duty on employers to verify Covid tests of unvaccinated employees returning from vacations (other German states may follow). The updated ordinance of the state of North Rhine Westphalia dated 9 July 2021 provides the following:

• Employees who have been on vacation after 1 July 2021 for at least five consecutive workdays must provide their employer on or during the first day of their return to work with proof of a negative Covid test.
• If work is resumed at a home office, the proof of a negative test must be provided for the first day the employee returns to work at the employer’s site or another place of work outside of the home office.
• This obligation does not apply to employees who are considered fully immunized.
• Violations of this duty represent an administrative offence and may be fined with penalty payments of up to €25,000.

Update 7 June 2021

Vaccination prioritisation scheme

The vaccination prioritisation scheme for certain age and employee groups has been lifted. All persons at least 16 years or older can now apply for a vaccination appointment with vaccination centres, company doctors or private practitioners. However, as there are still not sufficient vaccination doses available, it may take a couple of weeks until receiving the first vaccination appointment.

Update 11 May 2021

Ordinance on relaxation of measures for vaccinated and recovered persons outside of the employment context

On 9 May 2021, a new ordinance came into force, easing certain measures for vaccinated and recovered persons. These persons will now be treated equally to those who have tested negative for Covid-19.  A person is considered as vaccinated when the necessary vaccinations (usually two) have been performed and 14 days have passed since the last vaccination.

Contact and exit restrictions now no longer apply to vaccinated and recovered persons. This means, for example, that vaccinated and recovered persons are no longer counted at private gatherings. Night-time curfew restrictions under the Infection Protection Act no longer apply to these groups.

Also, quarantine obligations do not apply to vaccinated and recovered persons anymore.

However, in the employment context, the ordinance does not provide for any relaxations (yet). The rules on hygiene and distance requirements, the obligation to offer Covid tests and the home office requirement continue to apply to all employees, even if they are vaccinated or have recovered.

Update 27 April 2021

Employees now obliged to work from home if offered

The relevant regulations on home office work previously regulated in the SARS-CoV-2- Occupational Health and Safety Ordinance (SARS-CoV-2-Arbeitsschutzverordnung) have been transferred to the newly amended Infection Protection Act (IfSG).  In this context, the IfSG now provides the following:

• Employees are now obliged to accept an offer from their employer to work from home, provided there are no conflicting reasons, which may include cramped living conditions, disturbance by third parties (eg family members) or inadequate technical equipment.
• Not only employers but also employees are now forced to consider the possibility of working from home. Whereas employees were previously only asked to make use of their employer's offer, there is now an obligation on employees to work from home, provided there are no reasons to the contrary.
• The obligation to work from home is limited in time to the duration of the epidemic situation, longest until 30 June 2021.
• If employees do not agree to work from home, there is no penalty or fine.
• The legislation also introduces night curfews from 10pm to 5am in areas where the incidence rate is over 100 per 100k residents. During this time, however, it is permitted to leave the house for the purpose of work.

Obligation to offer Covid tests twice a week

With effect from 20 April 2021, the Corona Occupational Health and Safety ordinance was amended to include an obligation to offer Covid tests to employees once a week. This obligation for employers has now been further extended. Instead of one Covid test, employers must now offer their employees two Covid tests a week if the employees do not exclusively work from home. As before, both PCR and antigen tests (also for self-testing) may be used.

Employers may also use service providers to fulfil their obligation to offer tests twice a week. Other regulations on hygiene measures (eg observance of the minimum distance, use of protective masks, etc) continue to remain in force. The Corona Occupational Health and Safety ordinance is in effect until 30 June 2021.

Update 14 April 2021

The Covid Occupational Health and Safety Ordinance, applicable in all German states, was amended by the federal government on 13 April 2021. The amendment is expected to enter into force by the middle of next week. We have outlined the details below:

• Employers will be obliged to offer their employees who are not exclusively working from home a Covid test at least once a week. Employees accommodated in shared housing or workers who have direct physical contact with other people or frequent contact with customers must be offered two tests per week.

• The obligation to provide the tests applies regardless of the company's size. Employees, on the other hand, are not obligated to make use of the test offer.

• Even though employers must provide the tests, they do not have to document if their employees are actually using them.

• Accordingly, test results do not have to be documented either. It would therefore be sufficient to simply send self-tests home to employees or to deposit self-tests in the office where they are accessible to everyone. A list of the self-tests which are approved by the federal institute for pharmaceuticals and medical products can be found here . According to the government, there are currently enough self-tests available on the market to ensure independent procurement through employers.

• The employer may of course also offer PCR tests or rapid antigen tests if the necessary infrastructure is already in place.

• The cost of Covid tests will not be reimbursed to employers by the Government.

• In addition, other measures that were already included in the Covid Occupational Health and Safety Ordinance were extended until 30 June 2021, such as distance regulations, hygiene regulations and the appeal to allow employees to work from home (if possible).

Update 24 March 2021

The lockdown has been extended until 18 April 2021. Plans to have mandatory "rest days" over Easter have been shelved, however other points worth noting are:

• Continued obligation to offer working from home wherever possible: The occupational health and safety regulation issued by the German Ministry of Labour has been extended until 30 April 2021. Until then, employers are obligated to allow their employees to work from home if the nature of the activities allows it.

• Covid tests at the workplace: Where working from home is not possible, employees should be offered at least one, and "if available," two Covid rapid tests per week. At the beginning of April, the trade associations will present an initial implementation report showing how many companies conduct rapid tests. On this basis, the German government will discuss whether it is necessary to introduce an obligation for employers to test employees.

• Travel restrictions and quarantine: Citizens should refrain from non-essential travel. Anyone returning from a foreign high-risk area must remain in quarantine for ten days. This can be shortened by a negative test, but not before the fifth day after entry. When returning from virus variant areas, a strict quarantine of 14 days must be observed.

• Free testing: Free rapid tests will also be further expanded. Citizens have the opportunity to take a free rapid test once a week. In schools and childcare facilities, children and employees should be tested at least once a week.

• Medical face masks remain mandatory at workplaces, in public transportation and shops: The obligation to wear medical masks (FFP2, KN95/N95 or surgical masks) in public transportation as well as in stores still applies. Employers are required to provide medical masks where employees work together in the worksite.

• Local adaption of measures: In districts, where the incidence exceeds 100 over a three-day period, further measures should be taken. The affected districts should then impose curfews and, if and where necessary, tighten contact restrictions. From an incidence of 100, any openings made, eg in the areas of childcare, hospitality and retail, are to be reversed again.

These measures must now be implemented by the federal states by 29 March 2021 through legal ordinance.

The next conference between the chancellor and the prime ministers of the federal states is scheduled for 12 April 2021.

Update 5 March 2021

The Chancellor and Prime Ministers of the Länder have decided to extend the lockdown until 28 March 2021. However, some relaxation and a further opening strategy have been agreed:

• It is now permissible to meet with a maximum of 5 persons from two households. In regions with a 7-day incidence of 35 (infections per 100,000 inhabitants/week) up to 10 persons from three households are allowed to meet. Children up to 14 years of age do not count. If the 7-day incidence rises to over 100 for three consecutive days, the strict contact restrictions (one household only allowed to meet with one person from another household) will apply again. Non-essential private trips and visits are not allowed.

• The obligation to offer working from home wherever possible continues: The occupational health and safety regulation issued by the German Ministry of Labour has been extended until 30 April 2021. Until then employers are obliged to allow their employees to work from home if the nature of the activities permits it.

• Medical face masks remain mandatory in work places, in public transportation and shops: The obligation to wear medical masks (FFP2, KN95/N95 or surgical masks) on public transportation, as well as in stores, still applies. Employers are required to provide medical masks to employees when working with other employees.

• Decisions regarding employers’ obligation to offer Covid tests at the workplace are still pending: it is envisaged that employers will be obliged to offer their employees working at the employer’s site one free Covid rapid test per week. The Government will discuss this issue further today. Regardless of this, from 8 March 2021 all citizens should be able to be tested free of charge at least once a week, for example in test centres run by local authorities.

• Gradual relaxation of restrictions from 8 March 2021 are expected, with each step depending on the 7-day incidence in the respective region:

  • Now that schools and hair salons have already reopened, in a second opening step, book shops, flower and garden shops are allowed to reopen with restrictions on the number of costumers. Further service providers may also reopen. If wearing a mask is not possible, eg in beauty salons, customers must provide a negative Covid test result.
  • In regions with a 7-day incidence of less than 50, retail stores are allowed to reopen with restrictions on the number of customers, as well as museums, zoos and botanical gardens. Small groups of no more than 10 persons may also undertake exercise/sport together outdoors (non-contact sports). If the 7-day incidence rises to more than 50 again, stricter restrictions will apply again.
  • If the 7-day incidence does not increase after the opening steps, further relaxations will take place after 14 days (on 22 March 2021 at the earliest). In particular, we expect to see the opening of outdoor restaurants, theatres and cinemas and to allow contact-free sports indoors and contact sports outdoors. If the 7-day incidence rises to more than 50 again, stricter measures are to take effect again.

The next conference between the Chancellor and the Prime Ministers of the Länder is scheduled for 22 March 2021.

Update 12 February 2021

The Chancellor and the Prime Ministers of the Länder have decided to extend the lockdown until 7 March 2021. However, some minor relaxations have also been agreed. Particularly, the Länder may decide, at their own discretion, if and how to reopen schools and kindergartens. And, hairdressers may reopen from 1 March:

• Continued closure of Retail stores, pubs, restaurants, cultural and leisure facilities (medically required treatments remain permissible).
• Continued contact restrictions: Only permissible to meet with members of the own household and one person from another household. Non-essential private trips and visits - also of relatives - are to be refrained from furthermore.
• Continued obligation to offer working from home wherever possible: The occupational health and safety regulation issued by the German Ministry of Labour is still valid until 15 March 2021. Until then employers are obligated to offer their employees to work from home if the nature of the activities permits it. Companies are required to provide medical masks to employees where working in the presence of others is still required. For "confined space work areas" room occupancy should be reduced in accordance with the occupational health and safety standard. To reduce the number of passengers using public transportation at rush hours, companies are encouraged to introduce flexible working hours wherever possible.
  For more details on the regulation see the Insight on our website here.
• Medical face masks remain mandatory in public transportation and shops: Obligation to wear FFP2 masks, KN95/N95 masks or surgical mouth-nose coverings in public transportation as well as in stores.
• Re-opening of schools and kindergartens: The Federal States can decide in their discretion how to reopen schools and kindergartens. Medical masks should be used, and ventilation and hygiene measures remain important. Rapid tests should also be used more frequently.
• Re-opening of hair salons from 1 March: Hygiene rules, reservations and medical masks are mandatory.
• Further relaxations in case of an incidence of less than 35: In districts with a stable seven-day incidence of no more than 35 new infections per 100,000 inhabitants the federal states will be allowed to take further opening steps. These will include reopening of retail stores (access limitation of one customer per 20 square metres), opening of museums and galleries and further service sectors.
• Maintained and further restrictions in case of a higher incidence than 50: Maintaining or imposing stricter restrictions (eg remaining closure of schools and hair salons, movement restrictions of a 15km radius or curfews) possible in districts where the seven-day incidence does not decrease below the number of 50 (infections per 100,000 inhabitants/week). The Federal States may impose restrictions at their discretion.

The next conference between the Chancellor and the Prime Ministers of the Länder is scheduled for 3 March 2021.

Update 21 January 2021

Due to the continued high number of Covid infections, the German Federal Government (Bund) and States (Länder) have decided on the following updated covid measures:

• Extension of “hard lockdown” until 14 February 2021: Continued closure of schools and kindergartens, retail stores, service providers (however medically required treatments remain permissible), pubs, restaurants, cultural and leisure facilities.
• Home Office: the German Ministry of Labour will issue a regulation obligating employers to offer their employees to work from home wherever possible and practical considering the nature of activities. The regulation shall apply until 15 March 2021 but has not yet been published.
• Medical face masks mandatory at workplaces, in public transportation and shops: The obligation to wear mouth-nose coverings in public transportation as well as in stores still applies but now requires wearing of medical masks (FFP2, KN95/N95 or surgical masks). Employers are required to provide medical masks to employees where working with other employees is required.
• Social distancing in the workplace continues to apply: For "confined work areas" occupancy should be reduced in accordance with the occupational health and safety standards.
• Flexible working hours encouraged: Companies are also encouraged to introduce flexible working hours wherever possible, in order to reduce the number of passengers using public transportation during rush hours.
• Contact restrictions: One is only allowed to meet with members of their own household and one person from another household.
• Further restrictions (eg movement restrictions, curfews): Federal States may at their discretion still impose stricter restrictions (eg movement restrictions of a 15 km radius or curfews) which may apply in districts where the seven day incidence does not fall below 50 (infections per 100,000 inhabitants/week) until 14 February 2021.

Update 6 January 2021

• Extension of “hard lockdown” until 31 January 2021: continued closure of schools and kindergartens, retail stores, service providers (however medically required treatments remain permissible), pubs, restaurants, cultural and leisure facilities; employers are urged to make generous home office provision. The German Federal Government and the Federal States will consult again on 25 January to decide on the further way forward.
• Contact restrictions: From Monday 11 January 2021 onwards, one is only allowed to meet with one person from one other household;
• Movement restrictions: Districts with an incidence of more than 200 new infections (per 100,000 inhabitants/week) shall order movement restrictions - people may only leave a 15-km radius around their residence for valid reasons. Field trips and shopping are explicitly not considered valid reasons. Professional or official activities are generally still permissible. There is still no uniform guideline for all towns and districts on how to prove a justified reason which allows someone to leave the house. In some districts the presentation of a company ID card or similar is sufficient. Some districts, however, explicitly provide for the presentation of an employer’s certificate. Therefore, it is advisable to provide employees affected by a curfew (with regard to place and time) with a certificate in case they have to come to the office.
• Sick days for parents: The number of sick days for parents paid by the statutory health insurance will be doubled (now 20 days in total) - parents are allowed to take them, not only if their children are sick, but also if school or day-care operations are restricted because of Covid.

Update 5 January 2021

Germany remains in a so called “hard lockdown” officially until 10 January 21. The German Federal Government (Bund) and the Federal States (Länder) will meet today (5 January 2021) to discuss further action. An extension of the "hard lockdown" until either 24 January or 31 January is expected. It is unclear whether schools and kindergartens will remain closed.

The “hard lockdown” includes:

• Contact restrictions: Private meetings must be limited to your own and one other household and in any case only to five people, children up to 14 years are excluded.
• Closure of: Retail stores, service companies in the field of personal care (medically necessary treatments as physiotherapy remain possible), pubs, restaurants, cultural and leisure facilities.
• Working from home: Employers remain "urged" to consider whether premises may be closed for company holidays or generous home office solutions.
  As a side note: The German Federal Minister of Labour has now presented a new draft law that is intended to grant works councils a specific co-determination right in mobile work arrangements (as an alternative to the previously considered entitlement to home office work which has been rejected by Chancellor Merkel). We will provide separate Insight on this soon.
• Curfews in some German federal states:
  • In Hesse, curfews from 9 pm to 5 am apply to all towns and districts with a “consistent” incidence of more than 200 (infections per 100,000 inhabitants per week). Leaving home is only permitted for important reasons, including, among others, professional or official activities.
  • In Bavaria exit restrictions apply throughout the state: Leaving one’s own home is only allowed for good reason. These reasons include professional or official activities, as well as the use of healthcare activities, supply shopping, sports and exercise in the fresh air, and others. In addition, curfews from 9pm to 5am apply (for the time being) to all towns and districts with an incidence of more than 200 (infections per 100,000 inhabitants per week).

Employees wishing to rely on the professional activity exemption must show credible reasons for being outside home. A uniform guideline for all towns and districts on how to prove the important reason which allows them to leave the house does not exist (yet). In some districts the presentation of a company ID card or similar is sufficient. Some districts, however, explicitly provide for the presentation of an employers’ certificate. Therefore, it is advisable to provide employees affected by a curfew (with regard to place and time) with an employers’ certificate in case they have to come to the office. Our German team are very happy to assist with this.

Workplace Covid testing: although more and more testing centres are being established in German cities, wearing of masks and social distancing are still considered as a less intrusive and more reasonable restrictions than any testing obligations (except for very sensitive areas like health care and nursing).

Update 14 December 2020

The German Federal Government (Bund) and the Federal States (Länder) have agreed to implement a so-called "hard-lockdown" starting on Wednesday, 16 December 2020 until (for the time being) 10 January 2021:

• Contact restrictions: Private meetings must be limited to one's own and one other household and in any case to five persons, children up to 14 years are excluded.
• Withdrawal of prior exceptions for Christmas and New Year's Eve: From 24 to 26 December 2020 private meetings must be limited to one's own household and 4 additional persons of the closer family circle (parents, siblings etc). Children under 14 years of age do not count. No exceptions apply for New Year's Eve.
• Closure of retail stores: Retail stores will be closed with the exception of grocery stores and stores selling goods for everyday consumption.
• Service companies in the field of personal care: Hairdressers, massage studios, beauty salons and similar businesses will be closed. Medically necessary treatments as physiotherapy remain possible.
• Extension of closure of pubs, restaurants, cultural and leisure facilities. In addition, a ban on drinking alcohol in the public sector is being introduced.
• Employers: Employers are "urged" to consider whether premises may be closed for company holidays or generous home office solutions from 16 December 2020 to 10 January 2021.
• Schools and kindergartens: Children should stay home whenever possible. Schools are being closed or children are being educated at home. The same applies for kindergartens. Emergency child care is being established.
• Financial support for companies and institutions affected by the partial lockdown are to continue.

In addition, many German federal states have already tightened Covid measures beyond the above presented measures and provided for the implementation of curfews and/or exit restrictions. Please see below a summary for Hesse, Bavaria and North-Rhine-Westphalia:

• In Hesse, curfews from 9pm to 5am apply to all towns and districts with a "consistent" incidence of more than 200 (infections per 100,000 inhabitants per week). Leaving one's own home is only permitted for important reasons, including, among others, the exercise of professional or official activities.
• In Bavaria exit restrictions apply throughout the state: Leaving one's own home is only allowed for good reason. These reasons include professional or official activities, as well as the use of healthcare activities, supply shopping, sports and exercise in the fresh air, and other. In addition, curfews from 9pm to 5am apply (for the time being) to all towns and districts with an incidence of more than 200 (infections per 100,000 inhabitants per week). Leaving one's own home is only permitted for certain reasons, including, among others, the exercise of professional or official activities. The prime minister announced to extend the curfews throughout the state.
• In North Rhine-Westphalia, for the time being, no additional measures are planned.

Update 11 December 2020

In view of the high infection and death rates, many German federal states are tightening Covid measures. The latest for Hesse and North-Rhine-Westphalia below - these are in addition to the latest restrictions in Bavaria below.

In Hesse:

• Additional regulations will apply from Friday, 11 December 2020, until (for the time being) 10 January 2021.
• The regulations provide for the following:
  • Curfews from 9pm to 5am apply to all towns and districts with a "consistent" incidence of more than 200 (infections per 100,000 inhabitants per week). Leaving one's own home is only permitted for important reasons, including, among others, the exercise of professional or official activities.
  • Drinking alcohol in public and selling it for immediate consumption will be prohibited around the clock.

In North Rhine-Westphalia:

• No additional measures have yet been decided. 
• However, there is discussion around the introduction of a "hard lockdown" from 27 December 2020 until 10 January 2021, during which the retail sector, with the exception of grocery shops, will close.

Update 8 December 2020

The partial lockdown, which has been in force for the entire country since 2 November 2020 has been extended until (for the time being) 10 January 2021.

In Bavaria, additional regulations are to apply from Wednesday, 9 December 2020, until (for the time being) 5 January 2021. The approval of the Bavarian parliament on Tuesday, 8 December 2020 is still pending, but is considered very likely. The regulations provide for the following:

• With regard to the development of infections, Bavaria again declares a state of emergency.
• Exit restrictions apply throughout the state: Leaving one's own home is only allowed for good reason. These reasons include professional or official activities, as well as the use of healthcare activities, supply shopping, sports and exercise in the fresh air, and other.
• In addition, curfews from 9pm to 5am apply to all towns and districts with an incidence of more than 200 (infections per 100,000 inhabitants per week). Leaving one's own home is only permitted for certain reasons, including, among others, the exercise of professional or official activities.
• Schools: From 8th grade onwards, a system of alternating teaching applies. Distance learning applies at all vocational schools.
• Increased inspections are carried out at commercial and service enterprises.
• During church services, masks are still compulsory - also at the place of worship - and singing is banned.
• Alcohol consumption is prohibited in public places.
• Local border traffic will be suspended.
• Elder people's and nursing homes, institutions for the disabled: only one visitor per day per resident, only with a negative covid test, equipped with FFP2 mask. All employees must undergo a corona test at least twice a week.
• Health authorities must use the same software, which is provided by the federal government.
• Working from home shall be granted, if possible.

Update 26 November 2020

We have provided a brief summary of the new COVID resolutions for Germany. Our team are happy to help if you have queries:

• Extension of partial lockdown: The closure of pubs, restaurants, cultural and leisure facilities will be extended until at least 20 December. Wholesale and retail trade will remain open.
• Tightening of contact restrictions: Private meetings are to be limited to one's own and one other household and in any case to five persons, children up to 14 years are excluded.
• Exceptions for Christmas and New Year's Eve: From 23 December to 1 January at the latest, meetings "in the closest circle of family or friends" should be allowed with a maximum of ten people, whether indoors or outdoors. Children under 14 years of age do not count. The number of households from which they come will not be restricted. School holidays will start earlier than usual, on 19 December.
• Extension of obligation to wear mouth and nose protection: In enclosed spaces that are open to the public, everyone must wear a mouth and nose cover. This also applies to public transport and busy public places - which ones are, is determined by local authorities. Masks are now also compulsory in front of shops and in car parking areas.
• Company holidays: Employers are "urged" to consider whether premises can be closed by company holidays or generous home office solutions from 23 December to 1 January.
• Schools and kindergartens: Childcare and schools should remain open.
• Rail services: In order to make travel safer, the "seating capacity" is to be significantly increased to allow even more distance between passengers.
• Quarantine: Domestic quarantine is set at ten days as a rule instead of the previous 14 days. However, this requires a negative rapid antigen test.
• Financial support: So-called “November support” for companies and institutions affected by the partial lockdown are to continue in December. Companies and institutions can apply for reimbursement of up to 75% of their turnover in the same month of the previous year - ie December 2019 - from tax money.
• Social guarantee 2021: The federal government promised to stabilise contributions to pension, health, unemployment and long-term care insurance "at a maximum of 40%". Any additional financial needs of the social insurance schemes are to be covered by the federal budget until 2021. Within this framework, the Federal Government will examine what a tax-financed stabilisation of contributions to health insurance and the artists' social insurance fund might look like

3 November 2020

The German Federal Government and the Länder have decided on a "partial lockdown" which will apply from Monday 02 November until, for the time being, the end of November.

The following measures will apply:

• Safe working: Employers must protect their employees from infections. All employers must "implement a hygiene concept on the basis of an adapted risk assessment and company pandemic planning in view of the increased number of infections". Contact within the workforce which is not absolutely necessary must be avoided. Wherever feasible, working from home should be facilitated. Manufacturing, trade, industry, crafts and small and medium-sized enterprises shall be allowed to continue to operate in safe working environments. In practice, this means that those who have returned to offices will have to consider a return to flexible working from home and, for all employers, health and safety arrangements will need to be revisited and enforced.

• Retail: Retail stores may remain open, subject to conditions relating to hygiene, access control and queuing. However, it must be ensured that there is no more than one customer per 10 square metres.

• Meetings in public and celebrations: Only members of the same household and one other household up to a maximum of 10 people may gather in public. Violations of these contact restrictions will be sanctioned by authorities.

• Travel and family visits: Hotels and pensions remain closed.

• Schools and kindergartens: Schools and kindergartens shall remain open in November. However, the Länder may introduce further protective measures.

• Entertainment: Theatres, opera houses or concert halls must close until the end of November. This also applies to fairs, cinemas, leisure parks, gaming halls, casinos and betting facilities.

• Sports facilities and sporting events: Recreational and amateur sports facilities must be closed as well as all public and private sports facilities, public pools and fitness studios.

• Gastronomy: Restaurants, pubs, bars, clubs, discos and similar establishments must close. Excluded are "delivery and pick-up" of food.

• Personal hygiene and hairdressing salons: Beauty salons, massage practices or tattoo studios will be closed. However, medically necessary treatments such as physiotherapy, ergotherapy and logotherapy remain possible. Hairdressing salons will remain open - unlike in spring - but subject to the existing hygiene provisions.

• Support for businesses: The Federal Government will extend aid for affected economic sectors and improve conditions, eg for the culture and event industry and also for self-employed persons. In addition, the rapid loan from the state-owned KfW banking group will be opened and adjusted for companies with fewer than 10 employees.

• Rapid tests for risk groups: Rapid corona tests will be made available quickly and as a priority for the sick, people in need of care, the elderly and disabled people.

• Controls: Controls will be increased to ensure compliance with the above measures.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.