Federal Cabinet adopts bill to amend protection against Infection Act

The IfSG serves as the central basis for nearly all measures to prevent and combat the novel virus. Although this is national law, it is essentially implemented by the federal states as their own matter. The ordering of measures for the prevention and control of communicable diseases is the responsibility of the authorities responsible under regional law. There are currently no plans for the Federal Government to have supplementing responsibility. With the amendment to the IfSG, the Federal Government aims to have more influence in the event of a communicable disease spreading across borders.

The bill therefore provides for the Federal Government to be granted additional powers for a limited period of time in an "epidemic situation of national importance". An "epidemic situation of national importance" in the sense of the act is deemed to exist if either the World Health Organisation (WHO) declares a pandemic and there is the risk of a threatening communicable disease being introduced, or if there is a risk of the spread of a threatening communicable disease across the German federal states. As soon as the requirements for the determination of an “epidemic situation of national importance” are no longer met, the Federal Government must immediately lift the determination.

Following the determination by the Federal Government of an “epidemic situation of national importance”, the Federal Ministry of Health is authorised, among other things, to take precautionary measures to protect the population and ensure health care by means of a general decree or statutory ordinance without the consent of the Bundesrat. This shall be achieved in particular by:

• rules for international travel, for example where reporting requirements are introduced for rail and bus transport;
• reporting and medical examination obligations;
• arrangements which are normally made by the self-governing partners;
• measures to ensure the basic supply of medicines, protective equipment and laboratory diagnostics;
• making regulations in medical and nursing facilities more flexible.

The bill also includes amendments to the Federal Building Code (Baugesetzbuch, BauGB). In future, there shall be a special provision that will make it possible to allow exceptions from applicable building law for facilities for health purposes in order to care for persons who are or may be infected with the coronavirus SARS-CoV-2. The purpose of this amendment is to make it possible to set up medical facilities at short notice.

The compensation rule of Section 56 IfSG is to be supplemented by a compensation regulation for parents whose children are no longer able to attend a childcare facility due to closures ordered by public authorities. Those entitled to compensation are working custodians of children who have not yet reached the age of twelve or who are disabled and therefore need help. It is planned to limit the right to compensation to a period of up to six weeks and to 67% of the loss of earnings, up to a maximum of EUR 2016 per month. However, there shall be no entitlement to compensation if the working hours of persons with custody are reduced due to an order for short-time work.

Contrary to all expectations, the bill does not contain any regulation on restrictions of residents to leave their homes or curfews. While there has been increasing discussion in recent days as to whether the general clause of Section 28 (1) sentence 1 IfSG constitutes a suitable legal basis for possible measures, the bill lacks clarification. Rather, the previous powers of the German federal states under Section 28 (1) sentence 2 IfSG, according to which they can order all "necessary protective measures", will remain in force.

Minister Spahn's original proposal was to identify and locate persons that had contact with sick persons by reading movement data from the mobile phones of these sick persons. However, this proposal is no longer included in the current bill. According to this proposal, the responsible health authorities were meant to be able to use mobile phone location data of persons who had contact with someone who has the coronavirus to track their movements in order to contact them in case of suspicion.[HD1]  The idea was that mobile network operators provide health authorities with the necessary location data. The German newspaper ‘Handelsblatt’ reported that the proposal was withdrawn after heavy criticism because of this measure, which would have a far-reaching impact on fundamental rights. Nevertheless, the idea does not seem to be completely dismissed, because the Robert Koch Institute (RKI) has also been working on a technical solution for mobile phone tracking since the beginning of March. Deutsche Telekom has already provided the RKI with anonymised customer data for this purpose. It therefore remains to be seen whether mobile phone tracking will be included in the amended IfSG after all.

We will keep you up to date on further developments.