Legally ok This is how a lawyer evaluates the scheme

From Wednesday, the 2G regulation will apply across the board in Rhineland-Palatinate. The only exceptions are public transport and the labor market. The 3G regulation applies here. So anyone who can be proven not to have been vaccinated or recovered needs a negative corona test in order to be allowed to work in the office or as a salesperson, for example. But how are the new Corona regulations to be assessed legally and what effects do they have in everyday work? To do this has Mercury the Mainz lawyer Dr. André Natalello * asked.

Mercury: Dr. Natalello, The 3G rule in the workplace will come soon. Ultimately, this means that the employer is informed about the vaccination status of his employees. Is that right?

Dr. André Natalello: With the revised Section 28b (1) IfSG, the legislator introduces the 3G regulation in the workplace. According to this, employees are only allowed to enter a workplace if they have proof of their recovered, vaccinated or tested status (3G proof) with them. Exceptions are made exclusively for the use of test offers in the workplace, which serve to obtain a test certificate or for the use of a vaccination offer by the employer. This 3G proof requirement also applies to employees who cannot be vaccinated for medical reasons.

Ultimately, it is up to the employees of a company – also taking into account the regulation in Section 28b (1) IfSG – whether they disclose their vaccination status to the employer. If it is not disclosed, there is still the option of providing negative test evidence.

Since the regulation is now anchored in the Infection Protection Act, there is at least one formal law. In my opinion, the regulation is legal within the framework of a balancing of interests with regard to the Basic Law. But even in this context, the well-known phrase applies: two lawyers, three opinions. Up to now, the vaccination status could only be requested from individual professional groups under strict conditions. In particular, concerns about data protection and personal rights spoke against the query.

From a legal point of view, may unvaccinated people be treated differently than vaccinated people?

Before I briefly examine the legal aspect, it should perhaps be briefly discussed how such a “different treatment” – more drastically worded “unequal treatment” – of unvaccinated employees, or employees who do not want to disclose their status to the employer, in the workplace Vaccinated or convalescent can look like.

With the 3G regulation in the workplace, it will mean that employees who can provide evidence of a valid vaccination or convalescence status to the employer will be checked once and will then be generally exempt from verification checks.

For non-vaccinated employees or employees who do not want to disclose their status to the employer, they must prove a negative test every day to access the workplace. On the one hand, this means a certain amount of additional work for these employees and, on the other hand, the proper execution of the test is supervised by the employer. In addition, employees are currently regularly provided with two free tests per week by the employer; however, for tests required beyond this, the costs could be imposed on the employee.

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From a legal point of view, there is, for example, the general principle of equal treatment in labor law, which prohibits discrimination, and there is also an anchored principle of equal treatment in the Basic Law. Accordingly, a legal dispute as to whether the new legal regulations violate the constitution would be exciting. So that we do not get too lost in legal details, such an examination ultimately leads to the question of whether such measures are proportionate. In this context, the considerable health risks for the population due to the Covid19 pandemic have to be weighed against the freedom-restricting measures for unvaccinated people. It should go without saying that such a weighing up is also shaped by personal views and that different legal answers can also be found on this question.

When would it start to be discrimination? And does the reason for not vaccinating play a role here, for example in the case of religious reasons?

As soon as a distinction is made between vaccinated and non-vaccinated people in general, that is not only at work, at least the aforementioned unequal treatment of people takes place, which requires constitutional justification. The first question here is whether the law regulating a restriction is constitutional in itself. Again, there is a balance between the health risks posed by the unvaccinated and the individual’s rights to freedom. In addition, however, it must be checked for each individual case whether the application of the law is still constitutional. When weighing up the individual cases, the reason (e.g. religious reasons) is also taken into account.

So far, a “real” obligation to work from home has never been enforced. Why is it so difficult for politics?

In addition to the legal question of whether you can use your private apartment for company purposes, the human factor in particular plays a role, which makes the decision in favor of politics more difficult. In my opinion, the new regulation in Section 28b (4) IfSG represents a good legal compromise. Accordingly, the employer must offer the home office, provided that there are no compelling operational issues that speak against it. The employee should accept it, unless there are reasons against it on their part. This means that the employee can refuse the home office offer much more easily, since he does not need any “compelling” reasons. It is enough if the employee explains that his apartment is too small or that he feels that working in the home office is too lonely.

There are certainly a lot of professional activities that can easily be carried out from the home office. As a managing partner, I can basically say from experience that our law firm Hobohm & Kollegen has locations in Mainz, Frankfurt and Alzey and of course I cannot be present at all locations at the same time. In addition, as lawyers, we are often on the way to court appointments and clients and yet we manage to manage our team quite well – regardless of whether we are present at the respective location. In the home office, however, I really miss the personal and personal interaction with my team.

In any case, an obligation to work from home would have far more serious consequences for employees than for employers. When working from home, the employer uses a person’s private living space as a kind of free or inexpensive office. To a certain extent, the employee would be obliged to use his private home for the employer’s economic interests.

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Nonetheless, it can be observed more and more frequently that employees – irrespective of whether they are required to work from home – prefer a hybrid model, so that some days they work in the office and others from home. Many people feel the same way as me, they also appreciate the workplace as a place of social encounter. Adidas boss Kasper Rorsted said appropriately:

“I don’t like working at home all the time. For me, work is a social thing, with us it’s a team sport. […] For me the question is not whether it is possible to work from home. But whether this model makes sense in human terms ”.

May an employee be dismissed who does not want to be tested? If not: what would the alternative be?

The employee is subject to the employer’s right to issue instructions with regard to the type and location of the work. This also includes operational processes. Since the employer is only fulfilling his statutory obligation with the test offer or the obligation to provide evidence, it is a lawful instruction from the employer that the employee must be tested. If the employee refuses, he fundamentally violates his contractual obligation arising from the employment relationship. This can be sanctioned. If there is no possibility to make the employee a home office offer, a warning would have to be issued before a notice of termination, since termination is the last possible means.

The Bundestag has decided to end the so-called epidemic situation of national scope and the Bundesrat has given its consent. Countries can, however, continue to impose measures one way or another. So what role does the resolution play in terms of potential restrictions? Is a lockdown still possible for everyone?

Basically, the lifting of the epidemic situation means that there will be no nationwide lockdown for the time being. So far, all restrictions have been linked to the existence of the epidemic situation, ie the existence of the epidemic situation has so far opened the door to the restrictions. With the new legal approach, there are now restrictions that can be made regardless of the existence of an epidemic situation, provided that these are necessary to prevent the spread of the Coronavirus Disease-2019 (COVID-19).

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These include B. the already known measures (distance requirement, mask requirement, submission of vaccination, recovery or test certificates, admission restrictions, etc.). Limiting the number of people at events and companies is also still conceivable. The measures that particularly interfere with fundamental rights, such as the prohibition of events, curfews, closure orders and travel bans, may in principle only be imposed in the event of an epidemic situation. However, with regard to measures that interfere with fundamental rights, there are in turn those that may be taken by the individual federal states under certain conditions. This is made possible by the “provincial reservation” discussed in the last few days.

A compulsory vaccination for certain occupational groups (e.g. carers) is under discussion. Would that be legally justifiable and why is the policy so skeptical about a general vaccination requirement?

The compulsory vaccination is a serious encroachment on fundamental rights, so that a particularly critical check should be made on the basis of the number of cases and the hospitalization rate as to whether such a drastic measure is required under fundamental law. However, something like this is definitely possible. Measles vaccination is already compulsory for certain professions. You can also take a look at Austria. The legal system there and the constitution are very similar to the German system. Austria has already introduced compulsory vaccination. Nevertheless, one should be careful not to “denounce” people without vaccinations. As a society based on the rule of law, we should tolerate and respect the decision against vaccination. Against this background, one should actually first check whether the number of cases cannot also be sufficiently reduced by daily tests of unvaccinated people. I therefore welcome the decision against a general compulsory vaccination.

The federal and state governments want to further increase fines for corona violations. When would the proportionality no longer exist here?

On this question, I consulted my business partner, lawyer Christian Giloth, who is a specialist lawyer for criminal law. Accordingly, the so-called excessive prohibition applies to penalties. So punishments must always be in relation to the act committed. However, he does not consider this principle to be endangered with the current sanctions. Nevertheless, attorney Giloth reported that various corona violations against his clients had been dropped so far. However, this is often due to the lack of traceability.

* Lawyer Dr. jur. André Natalello is one of the managing partners of the law firm Hobohm & Kollegen and specializes in the areas of labor and commercial law. The law firm Hobohm & Kollegen is a medium-sized law firm for private and corporate customers in Mainz and the surrounding area.