Although the numbers of Covid-19 infections remain high in Germany, employers are no longer obliged to grant smart working conditions to their employees that now must return to their offices.
As the Coronavirus emergency is now considered a common health risk, employees can no longer demand the working conditions that were present during the harshest months of the emergency.
What do employers must guarantee?
As of 20 March 2022, many of the safety requirements for workplaces to ensure the safety of their employees have lapsed, including the smart working requirement and the 3G rule (an acronym for “Genesen, Geimpft, Getest” or people who successfully recovered from Covid-19, that have completed the vaccination cycle or that tested negative). Until 25 May, companies are still required to take measures to ensure the safety of their employees, such as sanitising their spaces, spacing desks at least 1.5 metres apart (where possible) or using individual workspaces, and weekly testing. Shifts can also be organised to avoid overcrowding the office.
If the employer does not provide these measures, he/she has to justify them to the employees. If the measures taken by the employer are not sufficient, the employees are advised to report this directly to the employer. If, after this initial communication, the necessary measures are still not forthcoming, the employees can invoke Article 17 of the Occupational Health and Safety Act and apply to the health authority and, in the most extreme case, sue the employer. In this case, it is advisable to seek legal assistance before reporting. In addition, if the employer’s reckless conduct leads to the infection of an employee, they can sue for negligent personal injury and claim damages.
When is it possible to work from home?
If employees were previously authorised to work from home then this is still possible. This is usually regulated in the employment contract or a company agreement, but without a clause specifying this, the employer may insist on returning to the office.
Only in extreme cases workers can insist, and this can only be clarified in relation to a concrete individual case, such as the case of a disabled worker. In general, working in the office should not be compulsory if it poses a greater risk to the worker with a particular condition. This includes, for example, high-risk patients after organ transplantation, for whom the infection may be life-threatening even if they have completed all the required vaccination. Those who stay at home anyway, even though they do not belong to one of the above-mentioned cases, must expect to be dismissed or accept that their supervisor will stop paying them their salary.