German Employment Law - Most Important Changes for 2022

January.20.2022

2022 has several changes in store for employment law. We outline the top 10 of the most important changes in our Insight.

1. Special regulations on COVID-19 in 2022

The so-called "Corona bonus" of EUR 1,500.00, which can be granted tax-free in the form of allowances and benefits in kind, can still be paid out by employers until March 2022. The prerequisite remains that the corona bonus is paid in addition to the salary that is owed anyway.

Furthermore, employers continue to have easier access to short-time work allowance (Kurzarbeitergeld) until the end of March 2022. This is intended to avoid redundancies despite a reduced workload due to the COVID-19 crisis. The updated regulations from 2020 that simplify access to the short-time work allowance, such as the reduced quorum of employees affected by the loss of work, will continue to apply until March 2022.

2. Electronic sick notes

Since October 1, 2021, physicians have been obliged to send sick notes for work in digital form to the health insurers.

As of July 1, 2022, employers are entitled to retrieve data (i.e., start and duration of the incapacity for work and, if applicable, the end of continued payment) from the health insurance fund when they become aware of an employee's incapacity for work instead of asking the employee to submit a sick note. Employees are still obliged to immediately inform the employer of their incapacity to work. If required, they can still ask the doctor for a sick note in written form.

3. Minimum wage

From January 1, 2022, the statutory minimum wage was increased to EUR 9.82 gross per hour. From July 1, 2022, it will be raised to EUR 10.42 gross per hour. Vocational trainees will also benefit in 2022, with the monthly minimum wage for trainees rising from EUR 550.00 gross in 2022 to EUR 585.00 gross.

The newly elected coalition plans to raise the minimum wage to EUR 12.00 gross per hour. However, there is no exact draft law and no timetable available yet.

4. Company pensions

Since 2019, employees have been able to receive a subsidy of 15% from their employer on their deferred compensation - for new pension commitments.

From January 2022, the same subsidy is now also payable on existing commitments, i.e., those concluded before 2019. The employers' contribution savings with regard to social security contributions are thus now to be passed on to the employees (limited to the employer's actual savings) regardless of the date on which the relevant contract was concluded.

5. Works Council Modernization Act

The Works Council Modernization Act (Betriebsrätemodernisierungsgesetz) and the new electoral regulations for the election of works councils have brought about some changes. The regulations have been in force since 15 October 2021. Among the changes is that the election committee can now also hold digital meetings and that employers must provide the election committee with a list of all employees working remotely.

Check out the most important changes and practical advice on the upcoming works council elections in our guide here.

6. Compulsory vaccination in health care facilities

Employees in clinics, nursing homes, doctors' and dentists' practices, rehabilitation clinics, maternity hospitals and emergency services must prove to their employer by March 15, 2022 that they have been vaccinated against COVID-19 or have recovered from COVID-19. Alternatively, a certificate must be submitted stating that they cannot be vaccinated for medical reasons.

If employees cannot prove that they are vaccinated, the employer must inform the authorities; employees will in this case be prohibited to work and will likely not be able to ask for continued remuneration.

7. Participation of severely disabled employees

To promote employment of severely disabled employees there will be single points of contact at the local integration offices for employers starting from January 2022. These single points of contact are to provide employers with targeted information, advice and support in the training, recruitment and employment of severely disabled people.

8. Implementation of the EU whistleblower directive

For employers, the legal situation in Germany regarding whistleblowing is currently unclear, as the deadline for the implementation of the EU whistleblower directive into national law has passed in December 2021 and Germany (like many other EU member states) has not yet passed a law on this. While the direct applicability of an EU directive may be possible between citizen and state, this question has not been clarified in the relationship between two private parties, i.e. employer and employee, for example. The introduction of whistleblower protection measures in companies is therefore recommended.

9. New regulation on determining the status of freelancers

The German Pension Insurance Federation conducts the status determination procedure (Statusfeststellungsverfahren) to determine the status of an individual as an employee or self-employed person. From March 2022 on, the German Pension Insurance Federation only reviews, whether an employee is in fact employed or self-employed. Before, the German Pension Insurance Federation also reviewed whether an individual has an obligation to be insured in the statutory pension insurance scheme which was slightly different and entailed a more complicated and lengthy review of an individual's employment status.

A new feature is the status determination in so-called triangular relationships, which is particularly important when using external staff from third party providers. Previously, only a two-person relationship could be clarified in a status determination procedure or two procedures had to be initiated.

10. At last: Who still needs the SE?

Switching corporate structures to a SE (Societas Europaea) is quite popular for companies below the 500 or 2,000 employee thresholds. However, the SE might lose some of its attraction in the future. The new coalition has agreed that corporate co-determination should be tightened up in two key respects:

  • Currently, in a group, the decisive number of 500 employees is only attributed to the parent company, if there is a control agreement between the subsidiaries and the parent. On the other hand, German employees of a subsidiary which is only linked to the parent company by a profit transfer agreement or with which there is no company agreement at all are not counted for the 500 employee-threshold. This is now about to change. In the future, actual control by the parent company shall be sufficient for a recognition of the subsidiaries' employees for the threshold. This will significantly expand the scope of application of co-determination under the One-Third Participation Act (Drittelbeteiligungsgesetz – DrittelbG), numerous groups of companies with more than 500 and less than 2,000 employees will have to form a co-determined supervisory board for the first time.
  • The new coalition wants the so called "petrification effect" of the SE to no longer apply. So far, the question of the co-determination regime has been based on the time of the registration of the SE's conversion: If at the time of conversion into an SE the thresholds for co-determination are not reached, nothing changes if the number of employees increases afterwards and the thresholds are exceeded. This is now about to change: Companies can no longer retain their co-determination-free status in future if they continue to grow after conversion into an SE. However, this is a long-term project and will not be implemented any time soon. Also, it remains to be seen whether the coalition's plans comply with EU law.