By Christoph Kehlbach, ARD legal editors

What changes are there in terms of home office?

In the professional environment, too, the legislature is concerned with minimizing the number of direct contacts as much as possible. The aim is to contain the uncontrolled spread of the corona virus. For this purpose, there has been a right to work from home since January. The Corona Occupational Safety and Health Ordinance says: “In the case of office work or comparable activities, the employer must offer employees to carry out these activities in their home, if there are no compelling operational reasons.” However, employees were more or less free to decide whether to make use of this right. So if you – for whatever reason – wanted to work in the office rather than at home, you could do that too. Now, the change in the Infection Protection Act will also increase the pressure on employees: The above wording is written into the law. So far it has only been found in the ministerial occupational health and safety ordinance. It is supplemented by the following sentence: “The employees have to accept this offer, provided there are no reasons to the contrary on their part.” It should therefore become the rule that, where possible, office work is done from home.

What exactly does that mean?

The new wording makes it clear: employees should no longer be completely free to decide whether they should go to the office after all. You now need a reason for this. However, the requirements are not as high as those of employers. They only have to offer a home office if there is a “compelling reason”. Employees only need a “reason” if they do not want to work from home. So the requirements are not high here. The explanatory memorandum gives examples of “limited space”, “interference by third parties” and “inadequate technical equipment”. Other reasons are possible. It is also sufficient for the explanation that the employee informs the employer of the reason. So there is no need to provide evidence.

What is the situation with corona rapid tests in the workplace?

Something is also happening in terms of rapid tests: The relevant provision of the Corona Occupational Safety and Health Ordinance is to be changed on this point. Instead of once a week, employers should now have to provide their employees with a quick test twice a week. However, there is still no firm obligation to take the tests offered. Unlike many school students, employees are free to decide whether to test themselves before going to work. From a legal point of view, the increase from one to two quick tests offered is not part of the “federal emergency brake”. Because this change will not be in the Infection Protection Act, but in the corresponding occupational health and safety ordinance. It was therefore not part of the current voting. Incidentally, at the state level there are a few regulations that make it mandatory for certain employees to be tested. Such rules are currently still the exception.

How are the changes to home office and quick tests to be assessed?

Employment lawyers such as specialist lawyer Michael Fuhlrott from Hamburg see the home office obligation as an appeal rather than a binding legal obligation. The increase in the home office quota is the right approach, but the content of the new regulations does not convince him. In terms of rapid tests, it is difficult to understand why there is no obligation to test for employees. “If you look at rapid tests for a suitable means under infection protection law, an increase in the weekly test frequency will only lead to success if everyone participates. Everyone means here, however, companies and employees: Tests offered but not perceived help protect against infection in any way regardless of whether the employer offers this once, twice or even daily. “

The people in large parts of Germany have to adjust to exit restrictions and closed shops according to nationally binding guidelines. The Federal Cabinet has decided to change the Infection Protection Act accordingly. However, the Bundestag does not want to pass the so-called Corona emergency brake in a fast-track process – it learned that ARD capital studio from coalition circles. Accordingly, the parliamentary groups do not want to waive certain deliberation deadlines, which is possible in principle and which would have made it possible for a parliamentary resolution to be passed this week. The amendment to the Infection Protection Act includes, among other things, a curfew from 9 p.m. to 5 a.m. if the seven-day incidence is over 100 on three consecutive days in a rural district or urban district. This means that within a week there are more than 100 newly infected people for every 100,000 inhabitants. In these cases, members of a household are only allowed to meet with one other person. A maximum of five people can come together, not including children under 14 years of age.

Requirements for shop closings

The opening of cultural and leisure facilities such as theaters, museums or zoos will then be prohibited, as will accommodation offers for tourist purposes. Shops that do not serve daily needs also have to close again. Food retailers, beverage stores, health food stores, baby specialty stores, pharmacies, medical supply stores, drug stores, opticians, hearing aid acousticians, gas stations, newspaper sales outlets, bookstores, flower shops, pet stores, animal feed markets and garden centers are to be excluded. According to the resolution, services that serve medical, therapeutic, nursing or pastoral purposes as well as hairdressers – each with a mask – should be opened. The practice of sport should only be allowed in the form of contactless practice of individual sports. They should be allowed to be exercised alone, in pairs or with members of your own household. There are also exceptions for the competition and training operations of professional athletes and competitive athletes of the national and state squads, but only without spectators.

For schools incidence of 200 relevant

Precise lessons should only be permitted with two corona tests per week. The schools do not have to stop their face-to-face teaching, however, if the incidence value of 200 cases has been exceeded for three consecutive days. This also applies to vocational schools, universities, adult education institutions and similar institutions. Exceptions for graduating classes and special needs schools are possible. The brake also applies to daycare centers, but the federal states can enable emergency care. The cabinet also decided to increase the paid childhood days per parent from the current 20 to 30 days. Parents can also take advantage of these childhood illness days to look after their children when schools and daycare centers are closed.

Merkel: “Ambiguities are over”

Chancellor Angela Merkel defended the planned federal law in a statement: The nationwide uniform “emergency brake” was “overdue”. It is true that the citizens understand that measures differ from region to region. According to the Chancellor, however, ambiguities about “what, when and where” will be a thing of the past with the new legal regulation. With the new law, the “emergency brake” is no longer a “matter of interpretation”. The decision on the law is an “equally important and urgent decision on how to proceed in the corona pandemic”. Merkel emphasized once again that the situation was serious and that everyone should take it seriously. “We mustn’t abandon the doctors and nurses who have been giving everything for over a year, we have to help them.” All measures would have the “only goal of leading our whole country out of the phase of steadily increasing numbers of infections, the filling intensive care units and the shockingly high daily number of corona deaths.” Merkel thanked the citizens for “their patience, insight and care for others”. “We have already managed to bring the numbers down to a controllable level and we will do that again,” said the Chancellor. The cabinet proposal is then to be discussed in the coalition groups. The new rules should then be decided by the Bundestag in an accelerated procedure, if possible, and passed through the Bundesrat. However, the express consent of the regional chamber is not required. At most, the Federal Council could raise an objection.

The law is to apply for a limited period of time

Overall, the amendment to the law should only apply for the duration of the determination by the Bundestag of an epidemic situation of national significance. This is currently June 30th.

From Claudia Kornmeier, ARD legal editors

Can the federal government issue corona rules?

Yes, he can. Because the legislative competence for infection protection lies with the federal government. According to Article 74, Paragraph 1, No. 19, the “measures against publicly dangerous and communicable diseases” are a federal matter. The federal states are only responsible if the federal government has not regulated anything. So far, the federal government had set a certain framework, but then authorized the states to decide specifically which measures should be taken to combat the pandemic. That is why the corona rules have so far mainly been issued by the federal states by ordinance. But that should change now.

Could the federal government lay down even more corona rules?

Yes. The Bundestag could stipulate further concrete measures directly in the Infection Protection Act. However, it is also planned that the Infection Protection Act will in future also allow the federal government to take further measures for all of Germany by ordinance. Corona measures can be adjusted a little faster and more flexibly via statutory ordinance than in a legislative procedure.

To what extent does the Federal Council have to be involved in the reform?

The federal states are involved in the legislative process at federal level through the Bundesrat. There are laws that the Federal Council must approve in order for them to come into force. The Land Chamber can only appeal against the majority of the laws. Then a mediation committee has to be convened. In this way, a legislative process can at least be delayed. According to the Basic Law, the approval of the Federal Council is not required for protection against infection. The federal government also assumes that the current law is merely an “objection law”. However, it is controversial as to what applies when infection protection, for example, coincides with the issue of education, for example when schools are closed. Because the federal states are responsible for education. And with previous changes, the Infection Protection Act was also viewed as an approval act.

Is a curfew legally permissible?

Whether curfews are proportionate is very controversial. Critics doubt that such restrictions are even suitable for containing the infection rate. If you go for a walk alone at night, you don’t risk any infections. However, exit restrictions are more about preventing inadmissible private meetings. If you have to be home by 9 p.m., you may not even have dinner with a group of friends. In the past there were already comparable exit restrictions in some federal states. Some of them were overturned by the courts. Some courts have also questioned the effectiveness of exit restrictions. In other cases, exit restrictions were also overturned because the seven-day incidence was low at the time and continued to fall. However, the legislature also has a certain amount of leeway. In the explanatory memorandum for the law, the Federal Government expressly refers to experience in other countries and scientific studies. It may well be that the currently planned regulation will ultimately end up with the Federal Constitutional Court.

Who can overturn these new rules?

Only the Federal Constitutional Court can overturn the planned statutory rules. The corona regulations of the federal states, on the other hand, can be attacked before the administrative courts. If there are federal ordinances, things will look a little more complicated. In these cases, too, one could first sue the administrative courts. Filing a constitutional complaint directly could also be permissible. However, the hurdles are high.