Business and lawyers skeptical: Uncertainty about new 3G rules in the workplace
Business associations doubt whether the 3G rules that have been adopted are practicable in the workplace. While employers point to a great deal of effort with only a short time to implement, the construction industry, trade and building cleaners fear problems in practice. Data protection experts also see a need for clarification.
“The new test regime poses great challenges for our companies,” said Steffen Kampeter, General Manager of the Federation of German Employers’ Associations, the German Press Agency. The regulations for proving the status created legal certainty. The planned storage option also limits bureaucracy and helps to regulate company access.
The Bundestag and Bundesrat have decided on a 3G rule in the workplace that will apply nationwide from Wednesday. If “physical contact” with others in the company cannot be ruled out, access should only be possible with a vaccination, recovery or daily updated test (or a maximum of 48 hours old PCR test). Companies should monitor and document this on a daily basis. “To this end, all employers must also have the right to information about their employees,” says the decision. Employers offer free tests at least twice a week.
The Federal Data Protection Commissioner Ulrich Kelber considers some elements of the regulation to be “incorrect”. There is now an unnecessary risk of errors in data protection law, which could lead to delays in legal action, according to Kelber. “That would do massive damage to fighting the pandemic.”
Kelber generally advocates 3G in the workplace, but is disturbed by the implementation. “In most cases it would have been enough to allow employers to control anything at all.” Instead, the companies have now been permanently, nationwide and under threat of a fine to control the employees. Nevertheless, the draft law does not provide for any protective measures for employees’ data.
“The specifications could have been clearer,” says Baden-Württemberg’s data protection officer, Stefan Brink. There is a lot of leeway – for example, whether employers have to check all employees on a daily basis or whether random checks are sufficient. It is also unclear whether visual checks are sufficient, lists are created or a comparison with the identity card is necessary. “The lack of clarity is at the expense of the employees,” criticized Brink. In terms of documentation, tally lists or copies of vaccination certificates are also conceivable.
From a data protection point of view, visual inspections without “specific documentation” are sufficient, says Brink. He does not think it makes sense to create a proper implementation by the employers by Wednesday. The first controls would then probably begin and the system would then be gradually improved.
Catharina Glugla, data protection expert at Allen & Overy, also refers to legal details. There is the opinion that the vaccination or convalescence status should be followed up. “That is not true across the board. A general right to ask questions – that is, independent of the access control – is not provided. However, implementation of 3G access control without the right to ask questions will hardly be possible in practice.”
3G controls at the workplace become even more complex if they are to take place away from offices or factories – for example in the trades. For many rather small businesses, the control effort should remain relatively manageable, said Hans Peter Wollseifer, President of the Central Association of German Crafts, recently. “But in companies such as building cleaning or in the building trade, where most employees drive directly to the construction site and then often to objects and work locations that change on a daily basis, it should be extremely difficult. How do you want to control that?”
Given the hurdles for 3G, these industries are in favor of compulsory vaccination in the workplace. The test and control obligations are not feasible for the building cleaning trade, said Johannes Bungart, managing director of the federal guild association, the “Handelsblatt” (Friday). “Against this background, politicians should be courageous and honest: Better than new test and control obligations, which are impossible for companies to meet, would be nationwide instead 2G in the companies and thus a vaccination requirement at the workplace.”
The Central Association of the German Construction Industry also considers the implementation of the 3G regulation to be only possible to a limited extent, as chief executive Felix Pakleppa told the newspaper. In individual cases, companies should therefore be given alternatives such as a 2G regulation. “Even if compulsory vaccination is always only the second-best solution, it should not be ruled out from the start.”
The president of the employers’ association Gesamtmetall, Stefan Wolf, told the television broadcaster “Bild Live” with a view to 3G in the workplace that if an employee refuses to do so for a longer period of time, then he will no longer offer his work as part of his employment contract. “Then the employer can terminate the contract without notice.” (dpa / rs)