Germany's new Corona Occupational Health and Safety Ordinance comes into force

The Federal Ministry of Labour and Social Affairs' (BMAS) recently announced the new Corona Occupational Health and Safety Ordinance (Corona-ArbSchV) which comes into force tomorrow (Wednesday 27 January 2021 ). The Corona-ArbSchV regulates measures including an obligation for employers to allow their employees to work in home offices where possible, numerous regulations on contact restrictions in companies, and an obligation to wear mouth-nose protection. The previously issued occupational health and safety regulations on the coronavirus, the occupational health and safety standard and the occupational health and safety rule, continue to apply.

The Corona-ArbSchV is mandatory for all employers. The regulations in the ordinance are initially limited in time until 15 March 2021. Employers should be prepared for the likely extension of the regulations.

In response to the commencement of the updated regulations, what measures must employers now take?

Update the risk assessment

Employers must review and update their risk assessment (German employers are obligated by law to conduct a risk assessment for each workplace and update this assessment if there are any changes, for example, to the work environment) with regard to any additional infection-control measures required at the workplace and make any necessary adjustments. Employers should contact their occupational safety experts (German employers are also obligated to put an occupational safety expert (Fachkraft für Arbeitssicherheit in place) and seek legal advice. The results of the risk assessment must always be documented. Employers should take this obligation seriously in order to be prepared for official inspections by supervisory authorities.

Reduce contact and enable work from home

The simultaneous use of rooms by several persons as well as company meetings are to be reduced to the absolute minimum. As an alternative, the ordinance suggests the use of information technologies (for example, video or telephone conferencing). Where this is not possible, employers must ensure the equivalent protection of employees through other suitable protective measures (such as ventilation measures and partitions between employees). Employers who have implemented the necessary measures, according to the "Occupational Health and Safety Rule" or the "Occupational Health and Safety Standard" published by the BMAS last year, will probably already be familiar with this.

As an essential measure to reduce contact, employers must offer their employees in the case of office work or comparable activities (for example, activities that can be performed "digitally" from home) to perform these from home (a "home office"). However, the obligation to enable home office work does not apply if there are compelling operational reasons to the contrary. The question of when "compelling business reasons" exist can cause difficulties in interpretation. A compelling reason would be conceivable, for example, if an employee needs access to work equipment that is only accessible in the company or has to carry out highly confidential work. The frequently asked questions list published by BMAS lists activities in production, services, trade, logistics, processing of incoming goods, mail, etc. as examples.

Employers should make every effort to enable home office work. Combating the pandemic as quickly as possible and thus avoiding further aggravating measures is also in the employer's interest. In addition, the competent supervisory authorities can also check whether there are compelling reasons and, if necessary, issue enforceable official orders. In the worst case, there is the threat of an order prohibiting work or the subsequent imposition of fines.

There is no obligation for employees to accept and implement the offer to work in a home office. The ordinance "only" regulates the duty of employers to check whether home office work is possible and to offer this to employees, taking into account the regulations of the ordinance. For work in a home office, the regulations that are already in force still apply: It is necessary that there is an agreement to work from home (employment contract agreement or works agreement) and that the work is possible at all, both spatially and technically.

Minimum space per person

In the event that the simultaneous use of rooms by several persons is required, the ordinance regulates that a minimum area of at least 10m² may not be undercut for each person in the room. However, if the activities to be carried out do not permit this, the employer must ensure the equivalent protection of the employees through other suitable protective measures. For example, the ordinance mentions ventilation measures and suitable partitions between the persons present.

Small groups

In addition, the ordinance stipulates that employers in companies with more than 10 employees must divide them into working groups that are as small as possible. Contacts between the individual work groups in the course of operations as well as changes to this division must be reduced to the minimum necessary for the operation. In addition, employers must allow for staggered work as far as operational conditions permit.

Provision of mouth and nose protection

If the requirements described above (reduced room occupancy, distance regulation and partition walls) cannot be met or if activities are likely to result in increased aerosol emissions (for example, physically strenuous activities, loud talking required), employers must provide medical face masks ("surgical masks") or FFP2 masks. Other permissible mask types (for example, N95, KN95, etc.) are listed in the annex of Corona ArbSchV. Employees are obliged to wear the masks provided.

Employers are also allowed to take other equally effective measures. However, it remains unclear exactly what such measures might be. One conceivable measure would be to ensure a low aerosol concentration through special room-ventilation systems. As a precautionary measure, employers should therefore be prepared to provide mouth-nose protection that is permissible under the Corona ArbSchV.

It is also important that employers instruct their employees on how to put on and take off the protective masks to avoid possible contamination. The employer bears the costs, including the cost of providing masks. As the masks are single-use products or products with a wearing-time limit, employers must provide employees with new masks on a regular basis (possibly per shift/working day).

Determination rights of the works council

Employers must also observe the works council's co-determination rights when implementing the regulations of the ordinance. There is always a right of co-determination for occupational health and safety regulations if the implementation of the regulations allows leeway. The employer and the works council must reach an agreement on the formulation of this leeway (for example, possible alternative measures instead of a protective mask, see section 3, para. 3 Corona-ArbSchV). Since the regulation will apply from 27 January 2021, employers should act as quickly as possible here.

Osborne Clarke comment

Employers must act quickly. The new Corona ArbSchV comes into force on 27 January 2021. Employers should therefore act immediately to fully implement the requirements of the regulation. Employers should also carefully document the individual measures (e.g. result of the check whether it is possible to work from home).

What happens if employers do not implement the measures? The original draft bill of the Corona ArbSchV still provided for its own penalty provisions. These regulations are not included in the promulgated ordinance. The supervisory authorities can nevertheless issue an enforceable order to comply with the provisions of the ordinance and impose fines (up to €30,000) for violations.

The previously issued coronavirus occupational health and safety regulations, the Occupational Health and Safety Standard and the Occupational Health and Safety Rule, continue to apply.

Dr. Jörg Puppe, Lawyer

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The information contained in this document has been compiled with due care. Nevertheless, no liability can be accepted for its accuracy, timeliness and completeness, regardless of the legal basis. Reading this document is not a substitute for individual consultation, so that no responsibility can be assumed for decisions made by the reader on the basis of this information. Reprinting or reproduction is only permitted with the written consent of the publishers.