Due to the ongoing pandemic situation in Germany, the Saxon State Ministry for Social Affairs and Social Cohesion adjusted the Saxon Corona Protection Ordinance on March 5, 2021. Section 3a, which for the first time stipulates mandatory testing for employers and professionals, has now been added. Employers in particular are now facing financial and organizational difficulties. The exact implementation of the mandatory test still raises some questions, which is why the most important things are now summarized here.
§ 3a Paragraph 1 - Employer
"From March 22, 2021, employers are obliged to make their employees present at their workplace an offer to carry out a free self-test at least once a week."
As a result, employees who work in home office, for example, or drivers who spend their working hours in the car on the road are exempt from this arrangement.
§ 3a Paragraph 2 - Employee
"From March 15, 2021, all employees and self-employed persons with direct customer contact are obliged to carry out or have a test carried out once a week for the absence of an infection with the SARS-CoV-2 coronavirus. The employer must provide the employee with the tests free of charge. The test must meet the applicable minimum requirements of the Robert Koch Institute. The proof of the testing must be kept for a period of four weeks."
According to the regulation giver's justification, customer contact is direct physical contact or contact with actual personal encounters when exercising professional activities that are related to the exercise of a trade.
The exact wording of paragraph 2 allows the conclusion that volunteers are not required to test because they are not engaged in any professional activity. Furthermore, the area of application is limited to direct physical contact, that is to say touching and the like. As long as employees interact with customers while observing the safety distance and wearing the required mouth and nose covering, there is no obligation to test here either.
§ 3a Paragraph 3 - Exceptions
"Paragraphs 1 and 2 only apply if sufficient tests are available and their procurement is reasonable."
This paragraph is presumably one of the main reasons for confusion because neither the regulation itself nor the reasoning provides any kind of guide to narrow down the reasonableness criteria. The question of economic reasonableness will be of particular interest, since most companies are already struggling with considerable losses. What is certain is that the financial difficulties associated with obtaining a large number of rapid tests cannot be overcome by every employer. It remains to be seen how such problems will be solved.
The provisions of the new ordinance are mandatory actions by the authorities for the employer and consequently also subject to fines in the event of violations (Section 11, Paragraph 2, lit. However, since they are not part of the employment contract, they do not justify any claims of the employees to the rapid tests and, consequently, no rights of retention to the work or similar. Likewise, the employee does not violate the employment contract if he rejects an offered test option.