Corona – update on employee testing

The decisions of the Conference of the Heads of the Government of the Federal States [Ministerpräsidentenkonferenz, MPK] have so far only included calls for companies to provide far-reaching corona rapid tests for their employees. An obligation to do so still does not exist - apart from deviating regulations for certain groups of employees in individual federal states such as Berlin, Saxony and Brandenburg. The trade associations have used wide-ranging communications to urge companies to offer their employees tests and have published corresponding notices on their websites.

In the last few days there have now been changes / innovations in the relevant corona ordinances in individual federal states. These give self-tests carried out at companies, for which the company can issue a certificate, the same value as an official test. Currently, the state of North Rhine-Westphalia issued yesterday, on 8 April 2021, the Corona Test and Quarantine Ordinance (CoronaTestQuarantäneVO), which also explicitly provides for this possibility. The CoronaTestQuarantäneVO together with its annexes can be found here.

The following is a summary of the new regulation in NRW:

§ 4 CoronaTestQuarantäneVO contains a general passage on so-called employee testing, according to which companies in the private sector, corporations under private law and corporations and institutions under public law are to offer employees the possibility of being tested. A certificate can be issued on such test. This explicitly also applies to rapid tests carried out under the supervision of a competent, trained or instructed person.

This is where the regulation of § 2 (3) CoronaTestQuarantäneVO comes into play, which contains specifications regarding the issue of test certificates by employers:

• Employers can issue test certificates in accordance with the model in Annex 3 of the CoronaTestQuarantäneVO.
• To this end, the employer must ensure that tests are carried out or supervised by trained or competent personnel or personnel that has been specifically instructed to supervise self-tests. Only these persons are allowed to fill out the test certificates.
• The further requirements for persons in connection with supervised self-tests are laid down in Annex 1 of the CoronaTestQuarantäneVO and require, among other things, a documented instruction of the person together with information on the legal consequences of incorrect or untruthful certification.
• Employers who wish to offer the opportunity to issue test certificates must notify this to their competent local lower health authority before issuing any test certificates. The contact form at https://www.mags.nrw/coronavirus-beschaeftigtentestung-anzeige is to be used for this purpose.

These tests carried out by the company then make it possible for employees to be tested wherever evidence in the form of an up-to-date test is required (keywords: "close-contact services").

Regulations comparable to those in North Rhine-Westphalia currently exist in the federal states of Hamburg, Mecklenburg-Western Pomerania, Berlin, Saarland and Rhineland-Palatinate, although their underlying administrative procedures are quite different.

Please note: companies that issue certificates according to § 2 (3) CoronaTestQuarantäneVO without notification risk a fine of up to €50,000 according to § 20 CoronaTestQuarantäneVO in conjunction with § 73 (1)(a) No. 24 German Infection Protection Act [Infektionsschutzgesetz, IfSG]. 

You would be forgiven for thinking that such regulations are counterproductive to other statements, such as that all employees should remain working in the home office if possible. However, the focus of the regulation is surely rather on offering tests and certificates as extensively as possible wherever - and whenever - relaxations are possible.

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