Update: "Test offer obligation" for Companies in Germany

Companies are obliged to offer regular self-tests and rapid tests in their companies to all employees who do not exclusively "work in their homes". In contrast to § 6a para. 1 of the Berlin SARS CoV 2 Infection Protection Measures Ordinance, for example, this is not based on the presence of the employees in the company, which is why companies must ensure that employees who are on duty at other locations (customers, construction sites, etc.) are also provided with a weekly test offer.

The explanatory memorandum to the Ordinance clarifies that PCR tests or rapid antigen tests can be offered for professional or self-use. The wording of the regulation suggests that tests do not have to be carried out in the company and that employees can also be provided with self-tests for use at home. Likewise, test capacities can be "purchased" from external test providers.

In principle, a test offer must be made at least once a week. For certain groups of employees, the offer shall be made twice a week:

The Corona ArbSchV does not introduce compulsory testing for employees. This has rightly caused a lot of criticism, as it thwarts the goal of comprehensive testing in companies. However, the question arises as to whether companies are not entitled in individual cases to order compulsory tests as a measure of occupational health and safety or, in the case of refusal to take a test, can and possibly even must take sanctions under labour law.

In view of occupational health and safety and the employees' duty to cooperate (Sections 15, 16 ArbSchG), it would in any case be inconsistent if employees who deliberately refuse test offers work closely with other employees and there is therefore an increased risk of infection for them. Refusal of tests without justification can therefore result in sanctions under labour law in individual cases (transfer, warning and even dismissal in the case of persistent refusal without reason) (cf. blog post of 1 March 2021 ). If employees do not use the self-tests provided by the company themselves, as has happened in the past, but sell them on for profit, termination of the employment relationship for grave cause without notice should be considered.

Evidence of the procurement of the tests or agreements with third parties (service providers, etc.) on the testing of employees must be kept for four weeks. This is to serve as documentation of the operational offers of testing and enables the OSH authorities and the supervisors of the accident insurance institutions to check the operational measures.

In contrast, the regulation does not mention that the test results must also be kept or that the employees must be issued with certificates on the test results. For data protection reasons, test results should therefore not be comprehensively recorded and permanently stored. If the employee wants an official certificate of the test result and the employer wants to issue such a certificate, the employee must also register in advance. In NRW, this is possible at short notice in an unbureaucratic procedure: https://www.mags.nrw/coronavirus-beschaeftigtentestung-anzeige.

Pursuant to section 87, subsection 1, no. 7 of the Works Constitution Act (BetrVG), the works council has a mandatory right of co-determination in the area of occupational health and safety. However, the implementation of mandatory (statutory) requirements is only subject to the right of co-determination if the parties have an own range of motion (Cologne Regional Labour Court, judgement of 22 January 2021 - 9 TaBV 58/20).

The now envisaged obligation to offer tests opens up some leeway, for example with regard to the implementation of the tests, so that the works council must be mandatorily involved in the design of the test strategy. Until the regulation comes into force, however, it will hardly be possible to conclude a comprehensive works agreement, so that within the framework of cooperation based on trust, it must initially be relied on that the works council does not block the introduction of the tests.

The draft does not answer the question of whether the testing time - and waiting for a result - should be considered working time and paid. The explanatory memorandum only states that the decision on whether or not the voluntary testing of employees takes place within working time is made within the framework of "company agreements".

This passage is already questionable because it is not possible to decide within the framework of company agreements what constitutes working time in the sense of the Working Hours Act. As far as the remuneration of such time is concerned, a corresponding company agreement will have to comply with (priority) provisions of collective agreements. From a legal point of view, it will be decisive whether the tests are ultimately an activity for the benefit of the employer, which would then constitute remunerated working time. Since this is an infection control measure that ultimately benefits the community, it is to be hoped that companies will not also be burdened with the salary costs for waiting employees. In practice, however, it may be advisable to make arrangements for (different) remuneration of these times, as far as legally possible.

The amendments to the Corona ArbSchV also make no direct reference to the provision on fines in section 25 ArbSchG. This means that - as in the context of the obligation to offer home office - there is in any case no direct threat of a fine if companies cannot procure sufficient testing capacity within the next week.

However, employees have the option of complaining to the competent occupational health and safety authorities under section 17 (2) ArbSchG, which may take action and impose specific (fine proven) requirements. In terms of individual law, it is also conceivable that the employee has a right to refuse performance under section 273 of the German Civil Code (BGB) if the company persistently refuses to offer tests and this results in concrete health hazards.

The less mature amendments to the Corona Ordinance on Occupational Health and Safety (Corona-ArbSchV) give rise to a need for comprehensive action on the part of companies. In the very short term, the question of co-determination in companies will have to be clarified. Companies should also deal more intensively with those employees who consistently refuse tests and thus endanger the entire testing strategy.

Another complicating factor is that in Berlin and Saxony, for example, there are partly deviating regulations based on the respective Corona Protection Ordinances. In this respect, the question arises to what extent stricter measures can be enacted at federal state level on the basis of section 32 in conjunction with § 28 IfSG. In any case, for the time being, a "patchwork" of regulations remains in practice.