The amendment to the Infection Protection Act will also make labor law rules on home office and quick tests more binding. However, they are still not really mandatory.
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. “
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