Not in my House – yet another update on German Covid-19 legislation

Accompanied by demonstrations in Berlin, on 21 April 2021, the German Federal Parliament (Bundestag) has passed further legislation as a measure against rising infection numbers. The draft of the legislative act, commonly referred to as the Fourth Act on the Protection Of The Population (“Viertes Bevölkerungsschutzgesetz”, Act), includes regulations for both the private as well as the commercial environment and will apply nationwide. The Act has passed the German Federal Council (Bundesrat) on 21 April 2021, was signed by the German Federal President and published on 22 April 2021 and will come into force on 23 April 2021. This was one of the fastest legislative actions in German history.

For the time being, the Act will apply for a limited period until 30 June 2021. It is expected that as early as of next week the Act will be challenged by several groups at the highest German court, the Federal Constitutional Court.

“Obligation” to work from home

The Act adopts certain regulations of the SARS-CoV-2 Occupational Health and Safety Ordinance (“SARS-CoV-2 Arbeitsschutzverordnung“, Ordinance, cf. our blog entry of 23 March 2021). As provided by the Ordinance, pursuant to the Act employers are obligated to offer work from home to employees engaged with office work or similar activities. An exemption applies only if there are compelling operational reasons against this. The employer may be required to describe these reasons to the competent authority upon request.

The Act goes even one step further. Under the new rules, employees will now be “obligated” to accept this offer of working from home. However, employees are also entitled to refuse to accept such offer if they have “reasons” to do so. According to the rationale of the Act, such reasons for a refusal may include, for example, confined space, interference from third parties or insufficient technical equipment at the employee’s residence. It is important to note that in principle statutory obligations of employees are not part of the employee’s contractual obligations under the employment contract. This means that even under the new rules the employer will not be able to enforce working from home. Since it needs to be expected that authorities will audit employers to confirm compliance with the Act, employers are well advised to ask their employees to sign a notice explaining that working from home was offered but employees refused to accept this offer for one of the reasons provided for in the Act.

The other provisions of the Act are largely tied to the exceedance of certain incidence values. For example, depending on the number of recent infections, businesses may have to close to the public and curfews may apply. Furthermore, the Federal Government (Bundesregierung) is authorized to issue ordinances which may provide for even more extensive measures. Thus, employers will still have to continuously monitor the legal situation.

Obligation to offer at least two tests per week

The Federal Ministry of Labor and Social Affairs has announced a further amendment to the Ordinance (cf. our blog entry of 16 April 2021), which is expected to come into force at the same time as the Act. Under the amended Ordinance, employers are obligated to offer at least two tests per week for employees not exclusively working from home. In addition to that, employers will have to store documentation on the procurement of tests or on agreements with third parties regarding tests at least until 30 June 2021.