Currently, employees may enter their workplace, where physical contacts between employers and employees or third parties cannot be excluded, only if they are vaccinated, recovered or tested and carry with them, have available for inspection, or have filed with the employer a vaccination certificate, proof of recovery, or a negative test result (“3G”).
In daily practice, however, more and more test certificates are appearing which are extremely dubious. For example, so-called "online self-tests" are offered online – in some cases free of charge – by various providers. Proofs of recovery are also available online in some cases.
In our opinion, such online test certificates do not allow employees to enter the workplace. They do not meet the requirements of a proper test certificate within the meaning of Art. 28b Sec. 1 IfSG (German Infection Protection Act).
The corresponding requirements are derived from the COVID-19 Protection Measures Exemption Ordinance (“SchAusnahmV”). According to Art. 2 No. 7 SchAusnahmV, a test certificate verifies, in German, English, French, Italian or Spanish, in tangible or digital form, that a person is not infected with the Corona virus if the test was performed not longer than 24 hours before within the scope of certain occupational health procedures.
In addition, the performance or monitoring of a test always requires the presence on site. Thus, the testing regulation also stipulates "on-site monitoring" as a minimum requirement for testing. Tests in which, for example, a physician monitors the performance of a rapid test via video are not sufficient for this purpose.
It is to be hoped that the legislator will eliminate the legal uncertainty as quickly as possible and will create a clear legal basis in order to eliminate such "offers".
For example, the German Federal Ministry of Health correctly concludes that video-monitored self-testing is not sufficient:
"Test certificates as defined in the COVID-19 Protective Measures Exemption Ordinance which are to be used in Germany as part of vaccination-, recovery-, or test certificate-based protection concepts (so-called 3G concepts) must not be based on mere video-monitored self-testing."
This must apply all the more if such video monitoring has not even taken place.
In case of doubt, employers relying on the effectiveness of "online self-tests" run the risk – since it is also not always clear how these were obtained – of committing an administrative offense, since there is no proper test certificate. However, if – contrary to expectations – the tests obtained in this way should be declared valid by the legislator or by case law, there is a risk of remuneration owed due to default in acceptance (Annahmeverzugslohnrisiko) to the extent the employees were not employed due to the doubtful test certificates.
Inter alia, the following “test procedures” are available:
- Performance of a self-test marked with the respective date and initials of the self-testing person and photographed before and after performing the self-test. In addition, only a questionnaire has to be completed. After verification – supposedly by a physician – a downloadable PDF test certificate will be provided within about five minutes.
- The procedure is the same as in Section 1 above, whereas the correct performance of the self-test is additionally verified by a physician via video chat.
- In addition, the online self-test can be performed directly during the video chat under a physician’s observation.