Update
On Wednesday, 21 April 2021 the German federal government again issued a ministerial ordinance amending the obligation for employers to offer Covid-19 tests outlined in our Insight below. The amendment has already come into force.
Other than previously envisaged, employers are now obliged to offer their employees who are not exclusively working from home at least two Covid-19 tests a week. There is no longer a distinction being made between different groups of employees in terms of the number of tests to be offered weekly.
In addition, employers are now obliged to keep records of the procurement of the tests until 30 June 2021.
Obligation for employers to offer Covid-19 tests
On Tuesday 13 April 2021, the German federal government decided by ministerial ordinance to implement an obligation for employers to offer Covid-19 tests to their employees who are not exclusively working from home. This will be included into the existing Covid-19 Occupational Health and Safety Ordinance, which was simultaneously extended until 30 June 2021. The amendment is expected to come into force at the beginning of the 16th calendar week of 2021.
The obligation for employers to offer their employees a Covid-19 test at least once a week constitutes a further measure to prevent infections at the workplace. The obligation to comply with hygiene measures (maintaining the minimum distance, wearing a protective mask, etc.) continues to apply alongside this.
Obligation applies to all employers
In principle, every employer - regardless of the size of the company - is obliged to offer a Covid-19 test once a week to all employees who do not work exclusively from home.
Employees who perform work activities indoors under climatic conditions conducive to infection, work activities which require close contact (where the minimum distance of 1.5 metres cannot be maintained), or activities involving frequent contacts (e.g. retail, as well as transport, delivery and other transport services) must receive two testing offers each week. This also applies to employees who due to their work are exposed to living conditions conducive to infection, such as living in shared accommodation provided by the employer.
Free choice of testing method
Employers are basically free to choose the testing method. Rapid antigen tests for professional use or self-tests as well as PCR tests can be used.
With regard to the organisation of the test offer, several options are possible. On the one hand, employers can provide employees with self-tests, which they then carry out on their own responsibility. Which self-tests are approved can be found on the website of the Federal Institute for Drugs and Medical Devices. In addition, Covid-19 tests can also be carried out by the employer's personnel who have received respective training, provided that a corresponding infrastructure already exists in the company. Commissioning of external service providers to fulfil the obligation to offer tests is also permissible.
Procurement must be documented
Employers must document the procurement of the tests. The records must be kept for four weeks. Employers must be able to prove (e.g. by dated order confirmations) that the required number of tests has been procured. If the obligation to offer tests is fulfilled by commissioning externalservice providers (e.g. test centres), employers must be able to prove that sufficient test offers were agreed with the service provider. It is also advisable to document the submission of test offers. In case of self-tests, for example, by means of a confirmation of receipt. This should be performed each calendar week.
It should be noted that test results may not be recorded and stored by the employer, as these constitute employee health data which may only be processed under particularly strict conditions.
No obligation for employees to accept the offer
Although employers are obliged to provide weekly Covid-19 tests, there is no obligation for employees to accept the test offers. Employees who refuse to take the tests may therefore in principle not be subject to any consequences to their employment (such as being released from work without continued payment of wages). However, the situation may be different in fields where employees are obliged to perform a weekly Covid-19 test due to legal regulations. In some federal states this applies, for example, to employees of care institutions.
If an employee tests positive and notifies the employer of the test result, it may be advisable, in order to avoid Covid-19 outbreaks in the workplace, to locate and inform employees who had been in contact with the infected employee. The notification must be made anonymously, i.e. without providing personal data of the infected person (such as name, position, etc.), to possible contacts in the company. However, since contact tracing is carried out by the health authorities, employers are not obliged to take contact tracing measures.
Employer bears the costs
Employers have to bear the costs of the Covid-19 tests. The costs are not reimbursed by the state. The occupational health and safety authorities of the federal states monitor compliance with the obligation to offer tests and are authorised to enforce it in individual cases by issuing official orders. Violations may result in fines of up to 30,000 euros.
Conclusion
Employers must now quickly implement a suitable infrastructure for offering weekly Covid-19 tests for employees attending the office, e.g. by engaging an external service provider. They must also meet the additional administrative burden to comply with the respective documentation obligations.
