Courts of appeal are also increasingly dealing with so-called lateral thinkers, especially in administrative infringement proceedings for violation of corona rules. It is obvious that it would only be possible to conduct appropriate procedures under 3G conditions with the greatest procedural and organizational efforts. The AHA+L rule continues to applyIn order to ensure the best possible protection against infection, basic protective measures continue to apply. This includes basic rules such as maintaining a distance, observing hand hygiene, wearing masks indoors, and regular ventilation indoors. However, due to the explicit wording of Article 4(1) of Corona-ArbSchV and the information provided by the BfArM, the employer`s legal obligation to bear the costs does not currently extend to PCR tests; according to the current legal situation, there is only one obligation to support the rapid test. Of course, this does not prevent the voluntary acceptance of PCR tests. “While the new rules mean additional bureaucracy for employers, they also bring greater legal clarity,” said Lara-Christina Willems, an employment law expert at Pinsent Masons. “In recent weeks and months, employers have repeatedly expressed a desire to better protect employees and customers, but this was hardly possible with previous regulations. This is changing, at least in Bavaria. In the future, employees will need to provide 3G proof to enter the company. At the same time, the employer must monitor compliance with the 3G rule. Unvaccinated and unrecovered workers should be prepared for mandatory testing. A home office obligation is regulated by law.
Surprisingly, the Federal Constitutional Court (BVerfG) goes even further by establishing so-called 2G++ access rules for participation in the December 14 hearing on the Bavarian Law on the Protection of the Constitution. Concretely, this means that all participants in the process must also submit an ongoing PCR test. Participants are thus burdened by costs of about 60 euros and a significant organizational effort. In this regard, the media talk about the strictest rules of the republic. Fortunately, courtroom infections have so far remained a rare exception. Possible protective measures during sessions, such as wearing protective masks, maintaining distance, regular ventilation and using air filters, obviously have an effect. In addition, the vaccination rate of judicial personnel is above average; at the Higher Regional Court (OLG) in Frankfurt, for example, almost 99% of judges are fully vaccinated. If the employer employs unvaccinated or unrecovered workers, he must ensure in the future that he takes into account the right tests: in companies in contact with customers, a PCR test is necessary; in other companies, a rapid test or self-test is sufficient. Special protective measures (§ 28a IfSG) of the Infection Protection Act [de] are permitted to prevent the spread of COVID-19.
As long as the 7-day incidence in a county is stable below 35 new infections per 100,000 inhabitants, countries can suspend the 3G rule in whole or in part. A fine of up to €25,000 may be imposed on (i) an employee who enters the workplace without valid 3G evidence or who is unable to provide proof and (ii) an employer who does not fulfil his control obligations. The first Senate of the Federal Constitutional Court will open the hearing on the Bavarian Law on the Protection of the Constitution on 14.12.2021. c) alliance of images/dpa | Uli Deck – Cut and descale LTO The corona level in the Free State of Bavaria has been red since 09.11.2021, as more than 600 intensive care beds are occupied by corona patients. This puts in place stricter regulations, which also affect employers: even without contact with customers, the 3G rule now applies in the workplace. The most important facts at a glance: Algorithmic pricing raises concerns about the application of EU competition law on 2G++ currently applies to the BVerfG hearing. For other courts, an inappropriate standard, even 3G is problematic under the rule of law, says Roman Poseck, president of frankfurt`s higher regional court. On 17 December 2021, the rule of the Higher Administrative Court of Lüneburg ruled that the 2G rule violated the principle of equality and could not be applied in Lower Saxony at the moment. The 13th Senate ruling says that politics cannot transfer research results from the sports and recreation sector to retail research, as FFP2 masks could be worn in stores.
It was incomprehensible to the Court that the government had not created its own studies to increase the “target precision of its protective measures.” In the case of vaccination or recovery, a “simplified control process” may take place: a single record of complete vaccine protection (2 vaccinations + 14 days) or recovery is sufficient. For the latter, it should be noted that the proof of convalescence is valid for a maximum of 6 months before having to be renewed. In this regard, this date must be filed. The measures presented are valid from 24 November 2021 to 19 March 2022. Due to the rapidly changing infection situation, the legal requirements for employers and employees can change within a few days. In particular, the possibility of each federal state adopting divergent regulations must be observed. We will keep you informed via our newsletter or are also at your disposal personally as a contact person if you have any questions. In this context, the strict requirement of the BVerfG 2G++ for oral proceedings is an exception due to a special procedural constellation and is precisely not a reference for the general functioning of the court. The following features apply to the test: PCR tests are valid for a maximum of 48 hours and a rapid test (also self-test) for a maximum of 24 hours. What the federal and state governments have agreed in detail, you can read here in the resolutions on the corona pandemic PDF, 75 KB, not without obstacles. In order to fulfill the obligations of control and proof, the employer is expressly authorized to process the personal health data of employees. The data must be deleted after 6 months.
Nathalie Polkowski joined Deloitte Legal in 2016 and works as legal counsel in the Employment and Digitization and Trade practice groups. Ms. Polkowski is a labour lawyer and an employment lawyer. More than 2G+ means vaccinated or recovered, plus the current test; 2G++ means vaccinated or recovered, plus the current test on an official test site, as well as an FFP2 mask. The recast of Section 28b(4) of the Infection Protection Act (“IfSG”) stipulates that the employer must offer employees who perform conventional office work or a comparable activity to perform their work from home. This does not apply if there are “compelling operational reasons” contrary to an exclusive home office activity.