Plans of the traffic light parties: Much still open with 3G rule in the job

Status: 09.11.2021 5:20 p.m.

According to the plans of the prospective coalition partners, only those who have been vaccinated, recovered or tested should still be allowed to work on site. Employers and trade unions welcome the 3G rule, but point out unanswered questions.

The SPD, Greens and FDP want to introduce the 3 rule in the workplace across the country. Employees in attendance who have neither a corona vaccination nor a convalescent status should have to be tested daily for corona in the future. This was agreed in the morning, said the health policy spokeswoman for the SPD, Sabine Dittmar.

The parliamentary groups of the possible traffic light partners had asked the Federal Ministry of Labor to examine “how we can effectively structure compliance with this regulation,” said Maria Klein-Schmeink from the Greens. However, essential questions regarding the implementation of this planned measure still remain unanswered.

Is there a risk of dismissal if you refuse?

It is still open, for example, whether employees who refuse to take a test should be released or fear other consequences. What has not been resolved is what happens if employers cannot produce the necessary documents during inspections. Peter Meyer, specialist lawyer for labor law, thinks it is conceivable that test refusers would have to expect a warning or even a termination in the event of repetition. The refusal could be seen as a breach of duty.

Should the 3G rule be implemented, this would be associated with considerable requirements for companies. Because so far, according to the Occupational Safety and Health Ordinance, employers only had to offer corona tests twice a week to all employees who do not work exclusively in the home office. The obligation to test should therefore be flanked by the reintroduction of free “citizen tests”.

However, who will finance these daily tests if employees do not take a free test before starting work is open. The managing director of the German trade association, Stefan Genth, demanded that the costs for the tests should not be passed on to the companies. “Otherwise there is a risk that many employers will be overwhelmed, both organizationally and financially.” The tests would have to be paid for in full by the state.

Employers want the right to information

The so-called obligation to provide information about the corona vaccination status is also a point of contention. So far, only employees in daycare centers, schools and nursing homes can be asked by the employer whether they are vaccinated. Employers’ associations have long insisted on the right to ask questions for all industries and companies.

A 3G rule at the workplace only makes sense with a right to information, said the chief executive of the Federal Association of German Employers’ Associations (BDA), Steffen Kampeter. If the employee does not meet his obligation to provide evidence, he will often no longer be able to be employed. “The principle then applies: Without performance, there is no wage. This is the only way to effectively ensure in-house health protection.”

The Federal Association of Medium-Sized Enterprises argues in a similar way. Federal Managing Director Markus Jerger told the German Press Agency: “How should compliance with the 3G rule in the company be monitored if the employer is not allowed to query the vaccination status of the employees? That is why we demand the right for employers to access the vaccination status of their employees.” For employees who deal with vulnerable groups, there must also be a compulsory vaccination.

Unions against mandatory disclosure

The trade unions reject an obligation to provide information. “Regardless of the vaccination status, employers must take the necessary measures in companies to ensure effective protection of employees,” said DGB chairman Reiner Hoffmann. The basic rights of employees should not be disproportionately interfered with.

“Nevertheless, we recommend that employees voluntarily disclose their vaccination status.” Due to the current “escalating infection situation”, the prevention of infections in the workplace is more important than ever: “In addition to the existing occupational safety measures, 3G access rules in the workplace can be an effective means of doing this.”

IG Metall is also not fundamentally against the planned 3G rule. “We cannot avoid 3G regulation in companies if 3G or 2G becomes the norm in public spaces. We reject 2G regulation in companies,” said the union. The design of the concepts is subject to co-determination. “It is important to ensure data economy and a temporal link to the duration of the persistence of the pandemic situation.”

It is important that the employer bears the costs for the tests and that the time for the tests is treated like working time. How this is actually implemented depends on the respective situation in the company. Workers should also be offered alternatives, the union said. “This can be home office, for example.”

Hospitality industry criticizes confusing legal situation

The hotel and restaurant association Dehoga hopes that there will be more legal certainty and clarity with a nationwide regulation. “This increases the acceptance of the measures by the employees”, says General Manager Ingrid Hartges. The current legal situation is confusing.

So far, there is no nationwide legal framework in this country, as in Austria and Italy, to link access to the workplace to a vaccination or to the convalescent status or negative test results in all industries. Some companies therefore came up with their own rules for vaccinated and unvaccinated people.

A 2G regulation is apparently not planned for the time being. Attorney Meyer believes that implementation here is particularly difficult. “Such a regulation would mean that an employee would no longer be allowed to work if he were to exercise his right not to be vaccinated.” In this respect, 2G would indirectly “cap” employment opportunities at the workplace, which in many cases would be disproportionate.

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