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    From 20 April 2021, employers in Germany have been required to offer COVID-19 tests to all employees who do not exclusively work from home. This is the most recent amendment to the SARS-CoV-2 Occupational Health and Safety Ordinance (SARS-CoV-2-Arbeitsschutzverordnung – the “Ordinance”) and applies in addition to the technical, organizational and personnel-related health-and-safety measures employers have been required to implement since the early days of the pandemic.

    What does this new obligation mean for employers? What types of tests are adequate? How often do employees have to be given the opportunity to get tested? What if there are not enough tests available? Can employees refuse to get tested and still come to work? What happens if an employee is tested positive? What are the risks for employers if they fail to comply? This article provides relevant answers. The Federal Ministry of Labor and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) has published helpful guidance, which is considered in this article as well.

    A. Test offerings

    In accordance with sec. 5 para. 1 of the Ordinance, employers are obliged to offer to all employees who do not work exclusively in their homes a test for the direct detection of the pathogen SARS-CoV-2 at least once per calendar week. On that basis, offers also have to be made to employees who only occasionally come to the office (e.g. to pick up mail).

    Employees whose activities are associated with an increased risk of infection with the Coronavirus must be offered testing at least twice a week in accordance with sec. 5 para. 2 of the Ordinance. The Ordinance includes a list of categories of employees for whom this is relevant as follows:

    1. Employees placed in shared housing by or at the direction of the employer (e.g. seasonal workers in agriculture, construction workers, and temporary agency workers, as the case may be),
    2. Employees working in indoor climatic conditions conducive to transmission of the SARS-CoV-2 coronavirus (e.g. employees in meat processing or food production facilities with reduced room temperatures and ventilation, and employees in environments with increased noise exposure and a need to permanently speak or shout at higher volume),
    3. Employees in establishments providing personal services where direct physical contact with other persons cannot be avoided (e.g. in childcare, nursing care, medical and healing professions, or hairdresser or manicure services),
    4. Employees engaged in activities that involve contact with other persons, provided that the other persons are not required to wear mouth-to-nose protection (e.g. caring for younger children or employees with physical limitations, facial treatment such as barber or cosmetic services, and restaurants), and
    5. Employees who frequently come into contact with other persons due to the nature of their work (e.g. retail services, logistics and supply services, and passenger transportation).

    Adequate tests include PCR tests and rapid antigen tests for professional or self-application. The Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte – BfArM) maintains a list of proper rapid antigen tests. So-called antibody tests are not adequate because they do not indicate the virus or a current infection but rather antibodies resulting from a previous infection or from vaccination.

    The Federal Institute for Drugs and Medical Devices also maintains a list of tests and distributors that offer such antibody tests. Employers can order necessary test volumes either through distributors or regular pharmacies. By now, also grocery stores sell tests for self-application.

    Test offerings by employers are part of the occupational health and safety system required on the basis of the Occupational Health and Safety Act (Arbeitsschutzgesetz). Costs generally have to be borne by the employer. For certain groups of employees working in medical or nursing care, childcare as well as care for persons with limitations, cost reimbursement may be claimed on the basis of sec. 4 to 7 of the Coronavirus Test Ordinance (Coronavirus-Testverordnung).

    In connection with personnel leasing the obligation to offer tests applies to the hirer as the entity actually employing the leased worker in its business operation. Hirers may want to discuss cost reimbursement with the respective agencies that provide the employees.

    B. Process

    Employers are free to determine when (e.g. during or outside working hours) and where tests should be performed. If employees are provided with quick tests for self-application, it is recommended to have employees perform the tests already at home or on their way to the office in order to avoid that employees already in the office are exposed to infected persons.

    Testing may be performed by the employees themselves or by appropriate service providers or accredited testing centers. If employers commission the services of third parties, they must ensure that only individuals perform the tests that are qualified, have the necessary knowledge, and have been properly instructed.

    Works councils may have consultation rights when it comes to the implementation of the test procedures (Sec. 87 para. 1 no. 1 and 7 Works Constitution Act) and the collection and processing of employee data, including health data (Sec. 87 para. 1 no. 6 Works Constitution Act). In light of the obligation of employers to offer tests immediately, there might be no time to go through lengthy consultations first. The practical recommendation is to offer tests as soon as possible, inform works councils about the launch of the test offering initiative and take up consultations without delay. If, as a result of the consultations, changes need to be made the test process needs to be amended.

    C. Voluntariness of tests and consequences in case of refusal

    There is no general obligation for all employees to make use of the test offerings, although it is recommended. Employees can take an active role in helping to stop the further spreading of the pandemic. In addition, the risk of infecting coworkers and ultimately family members can be significantly reduced. It should be noted that in certain sectors employees have to get tested regularly on the basis of federal and state law in accordance with the Federal Act Infection Protection Act (Bundesinfektionsschutzgesetz – IfSG).

    In situations where it is mandatory and statutorily required to get tested, employees cannot refuse a test. If an employee refuses a test, the employer has no obligation to let the employee work. The employer can send the employee home at no pay. If an employee continuously refuses to get tested although tests are mandatory, the employee has to expect disciplinary consequences (in addition to not getting paid) that may even mean a termination of employment.

    In situations where tests are not statutorily required, which is true for the majority of businesses, the circumstances of the individual case will be decisive. The Offenbach Labor Court recently rejected an employee’s request to be granted permission to the workplace after the employee had refused to get tested (decision dated 4 February 2021, case no. 4 Ga 1/21). The employee worked in a business operation where employer and works council had established an obligation for employees to regularly undergo PCR tests. The employee was sent home by the employer when he refused to participate in the tests. Ultimately, the court rejected the employee’s urgent request for formal reasons as the employee had not sufficiently presented the urgency to the court. On the other hand, the court also did not rule out that employees may have an obligation to participate in tests and may be denied access to the workplace if they refuse to take a test. Employers should nevertheless be cautious. In most cases, employees who refuse to take a test may not be sent home at no pay. This would only be different if the employee shows COVID-19 symptoms, has just returned from a high risk area, or was in contact with an infected person.

    D. Inability to offer tests and consequences

    If an employer does not succeed to procure tests in sufficient numbers, so that employees cannot test themselves, the employer violates its obligations resulting from the Ordinance. As a general rule, if an employer does not take the required occupational health and safety measures at all or does not meet the required standards, it is unreasonable for employees to perform work and the employees have a right to refuse performance. This is likely to be the case, for example, if employees regularly have contact with colleagues, customers or third parties in the workplace without maintaining minimum distances or wearing masks. In this case, the employees’ interest in being protected from the corona virus outweighs the employer’s interest in receiving the employees’ services.

    There are no court decisions yet on the case of lack of voluntary testing. However, as long as employers comply with all other protective measures (spacing, masks, disinfection, etc.), the absence of tests should not be sufficient to justify a right to refuse performance, especially since the performance of the tests is voluntary. That means that even if an employer provides sufficient tests, this does not mean that all colleagues will be tested (given the voluntariness) and that there is, therefore, an increase in safety for the affected employees for whom a test is not available.

    E. Positive test results

    Employees whose rapid antigen tests show a positive result are regarded as suspected cases and must seek isolation. Especially in the case of tests for self-application, high demands are made on the individual’s own responsibility. Affected individuals must contact their family practitioner or an appropriate testing center by telephone to initiate PCR testing to confirm or refute the rapid antigen test result.

    Due to the lower accuracy of the rapid antigen tests, in some cases it is not possible to exclude the possibility of a false positive result. Information on agencies that perform appropriate PCR retesting is available from the appropriate health department, community Covid-19 testing centers, family practitioners, and occupational health physicians. A PCR retest must always be initiated by the affected employees themselves; in the case of rapid antigen tests performed by qualified third parties, the specialist personnel performing the test will provide support.

    While employees with a positive test result are not obliged to disclose their test result to the employer, doing so is nevertheless highly recommended. It allows the employer to take additional measures such as isolating employees who have had contact with anyone tested positive, etc.

    In any event, employees with a positive PCR result must immediately go into isolation. Further information is available in various languages on the website of the Robert Koch Institute or from the Public Health Department. Positive PCR test results will be automatically forwarded by the laboratory to the appropriate health department. The health office will contact employees who have tested positive and inform them of their rights and obligations.

    F. Negative test results

    It is important to note that negative test results do not make any other technical, organizational or personnel-related infection protection measures obsolete. There is still a risk that the test result was falsely negative or that the infection is only in its early stages.

    G. Communication to employees

    The Federal Ministry for Labor and Social Affairs recommends communication with the following content:

    • Assurance that acceptance of the offer is voluntary and that neither acceptance nor rejection of the test offer will result in disadvantages.
    • Confirmation that employees will not incur any costs as a result of the test.
    • Appeal to regularly take advantage of the offered tests to protect colleagues and others from infection.
    • How, where and at what times the tests can be collected and performed.
    • Instructions on the proper use of the rapid antigen tests for self-administration.
    • Procedure in the event of positive test results, i.e., segregation, contacting the employee’s family doctor or appropriate testing center by telephone so that a PCR test can be initiated to confirm or refute the rapid antigen test result.

    If company policies or works agreements exist that already describe the process and actions to be taken whenever employees get tested positive, such policies or works agreements should be referenced in the communication as well.

    If there is no existing policy or works agreement, it should be pointed out that in the event of a positive test result, immediate segregation is required, i.e. the employees must not go to work.

    Employers should explicitly point out that negative test results must not be used as a reason for easing occupational health and safety measures. All occupational infection control measures must continue to be observed without restriction. The now mandatory test offerings are only an additional measure in the fight against the pandemic.

    H. Documentation and fines

    In accordance with Sec. 5 para. 3 of the Ordinance, employers are obliged to keep for at least four weeks evidence of the procurement of tests or agreements with third parties on the testing of employees (if testing is carried out, for instance, by the company doctor or other professional service providers).

    The following documents should be kept as evidence for inspections by the competent authorities:

    • Invoices from suppliers or contracts and statements with service providers and
    • Communication to employees and note when communication was distributed and how (email, notice board, etc.).

    In the event that it is not possible to procure a sufficient quantity of tests, it is essential to retain evidence that the employer can use to demonstrate its efforts to ensure sufficient test capacity in the event of an inspection by the health and safety authorities such as:

    • Ordering records
    • Correspondence with vendors, and
    • Notes on telephone calls with providers, etc.

    According to information on the homepage of the Federal Ministry of Labor and Social Affairs, the occupational health and safety authorities will take it into account during inspections if tests have demonstrably been ordered but not delivered on time.

    The employer has no obligation on the basis of the Ordinance to issue employees with a certificate of the test result. In this respect, further provisions may have to be observed in individual federal states on the basis of state ordinances, which should be checked in each individual case.

    Fines of up to EUR 30,000 may be imposed for each individual violation of the Ordinance. It is therefore essential to comply with the documentation requirements so that compliance with the Ordinance can be proven to the occupational health and safety authority.