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Mecklenburg-Vorpommern: LfDI Mecklenburg-Vorpommern publishes guide on 3G in workplace

OneTrust DataGuidance confirmed with Dr Carlo Piltz, Partner at Piltz Legal, on 20 December 2021, that the State Commissioner for Data Protection and Freedom of Information Mecklenburg-Vorpommern ('LfDI Mecklenburg-Vorpommern') published a guide on 3G (which represents those vaccinated against, recovered from, or tested against COVID-19) in the workplace. In particular, the guide notes, among other things, that employees can choose to deposit their 3G proof with the employer under Section 28b(1) of the Infection Protection Act ('IfSG'), and the employer is authorised in these cases and until the expiry of the statutory regulation to save a copy of the proof on the basis of employee's consent within the meaning of Section 26(2) of the Federal Data Protection Act of 30 June 2017 (implementing the GDPR) as amended. However, the guide highlights that if there is no consent, then the employer is not permitted to store the proof as such. In addition, the guide notes that data on the vaccination, sero, and test status may only be processed insofar as this is necessary in order to comply with the obligation of daily monitoring through verification checks and regular documentation pursuant to Section 28b(3) of the IfSG.

Furthermore, the guide clarifies that sending the 3G proof electronically in advance to the employer can only be done voluntarily since the employer is only allowed to store the proof of 3G in very limited cases, but in any case, the employee must also be given the opportunity to show the proof on site when entering the workplace. Moreover, the guide highlights that if the employer provides for an option to send the proof electronically, then particular care must be taken to ensure that the group of recipients is kept limited and that the communication channel offered is secure. Furthermore, the guide notes that if there is no authorisation to store the proof then it must be deleted, if necessary, after documentation.

In particular, Dr Carlo Piltz comments that, "[f]rom the perspective of the LfDI Mecklenburg-Vorpommern, the employer's obligation to provide regular documentation pursuant to Section 28b(3) sentence 1 of the IfSG can initially only mean an obligation to document the processes for monitoring compliance with the obligations to provide evidence and their actual implementation. So the LfDI Mecklenburg-Vorpommern actually seems not to allow the storing of a 'G' or something similar (for 'geimpft' = vaccinated).

For proof of actual implementation of these processes, according to the LfDI Mecklenburg-Vorpommern, a check mark or similar can be placed behind the name of the respective employee, for example, after the proof has been provided".

You can read the guide, only available in German, here.