Corona tests in employment

von Das Team der aigner business solutions GmbH

With the SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV), the legislator has imposed an obligation on employers to offer employees a Corona self- or rapid test at least twice per calendar week (§ 5 para. 1 Corona-ArbSchV). This measure was intended to contain the spread of Corona infection, particularly in the workplace context.

Corona tests in employment: How can it be documented that the duty to offer is complied with?

According to the Corona Occupational Health and Safety Regulation, the evidence of the procurement of tests, whether in the form of invoices for the purchase of the tests or the accounts with the service providers commissioned by the company to carry out the tests, must be kept by the company for four weeks (Section 5 (2) Corona-ArbSchV). These serve as proof. It is also advisable to record when and in what form the information about the test offer was given to the employees.

Are employees required to perform the tests?

The regulation imposes an “obligation to offer” on the employer, but no obligation on the employee to cooperate in taking advantage of the Corona Tests offered. In principle, employees who do not only work in the home office should also accept the offer.

Does the employee have to report the results of his tests?

If the result of the self-test or rapid test is negative, the employee must inform the employer. However, if a positive result is obtained from the rapid tests or self-tests, the employee has a duty to inform the employer of the positive test result. This duty arises from the ancillary duties under the employment contract pursuant to Section 241 (2) of the German Civil Code (BGB) and the avoidance of health hazards to colleagues. The employer has a duty to protect other employees.

Employees who test positive should have the positive result of the self-test or rapid test confirmed with a PCR test. The employer can exempt the employee from the obligation to be present and order home office work until the PCR test result is available, insofar as this is possible in the specific activity performed.

Corona testing in the employment relationship: On what legal basis can documentation be made?

The Corona-ArbSchV does not contain any obligation to document personal data in connection with the performance of the test. Consequently, the legal basis of the legal obligation under Art. 6 (1) (c) GDPR is not applicable here. In principle, it would be possible to check the other legal bases of Art. 6 (1) GDPR for their applicability. However, it is preferable to consider the legislative decision not to impose any further documentation obligation as a guideline and to carry out the operational Corona Tests without further data processing.

How long does the Corona Occupational Health and Safety Ordinance apply?

According to § 6 of the Corona-ArbSchV, the validity of the Occupational Health and Safety Ordinance is limited to 30.06.2021.

However, on 11.06.2021, the Bundestag extended the epidemic emergency until 30.09.2021. This would allow the federal government, without the approval of the Bundesrat, to extend the validity of the Corona Occupational Health and Safety Regulation beyond June 30, 2021.

If the regulation is not extended beyond June 30, 2021, due to the current Corona situation, employers may continue to offer the tests on a voluntary basis to reduce workplace infection risk. Every company and every employee who continues to participate in the tests reduces the risk of infecting their own colleagues or even their own family.

We will be happy to support you with any questions you may have about data protection. Simply call us at our headquarters in Hutthurm at +49 (0) 8505 91927 – 0 or at our branch office in Munich at +49 (0) 89 413 2943 – 0 or use our contact form.

Das Team der aigner business solutions GmbH

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Unser Team besteht aus erfahrenen Juristen, Webspezialisten, IT-Experten, zertifizierten Datenschutz- und Informationssicherheitsbeauftragten. Mit unserer Erfahrung, Expertise und erprobten Verfahren, helfen wir Unternehmen, praxisnahe Lösungen im Bereich Datenschutz und Informationssicherheit zu finden. So helfen wir beispielsweise bei der Umsetzung der DSGVO oder der Einführung von Informationssicherheitsmanagementsystemen (ISMS).

Schlagworte: Data protection, Covid