Munich, Germany

In brief

The Federal Ministry of Labor and Social Affairs (BMAS) has already published general regulations for infection protection in April 2020 as part of the SARS-CoV-2 Occupational Safety and Health Standard. Following some criticism, the working committees of the Federal Ministry of Labor and Social Affairs have now specified the requirements for occupational health and safety and, together with the Federal Institute for Occupational Safety and Health (BAuA), published the SARS-CoV-2 Occupational Health and Safety Regulation on August 10, 2020.


Background and objectives of the SARS-CoV-2 Occupational Safety and Health Regulation

On the basis of Section 5 of the German Protection against Infection Act, the SARSCoV-2 Occupational Safety and Health Regulation (hereinafter “Occupational Safety and Health Regulation”) specifies the requirements for occupational safety and health with regard to SARS-CoV-2.

The measures outlined in the Occupational Safety and Health Regulation apply to all areas of economic life. The Occupational Safety and Health Regulation aims to reduce the risk of infection of employees and creates legal certainty for the employer.

Legal certainty for the employer

The specified occupational health and safety measures are not only a guideline for the employer in the meaning of a recommendation, but – if followed by the employer – also protect him against liability risks: The Occupational Safety and Health Regulation specifies the more general rules of the Occupational Safety and Health Act (ArbSchG). If the employer is protected from liability. However, if the employer deviates from the measures recommended in the Occupational Safety and Health Regulation, the employer must prove that his measures ensure – at least – the same level of safety and health protection for the employees.

General structure of the Occupational Safety and Health Regulation

The Occupational Safety and Health Regulation contains a detailed catalogue of definitions, e.g. about the different forms of mouth-and-nose-covering.

Overall, the protective measures regulate technical aspects of infection protection, such as ventilation or the installation of partitions, organizational aspects, such as spending time in canteens or other common rooms, and personal aspects for individual cases.

Clearance, hygiene, masks and ventilation of rooms remain the most important measures to reduce the risk of infection in the workplace.

Concrete protection measures in detail

The Occupational Safety and Health Regulation emphasizes that the employer must regularly review and – if necessary – update the existing risk assessment and the defined occupational health and safety measures with regard to any additional measures required to prevent infection in the workplace. The protective measures must be adapted to the individual occupational conditions.

The rules on working from home deserve special attention. The Occupational Safety and Health Regulation clarifies that the requirements of the ArbSchG and the Working Hours Act also apply during the work from home, even if it is not teleworking.

The Occupational Safety and Health Regulation also addresses protective measures against increased psychological stress caused by pandemics, such as possible conflictual disputes with customers, long-term high work intensity in system-relevant sectors, and the effects of contact restrictions such as social isolation during working from home.

It is interesting that there are no specifications in the Occupational Safety and Health Regulation regarding the controversial fever measurements in companies (as still recommended by the Occupational Safety and Health Standard). These were criticized by some state data protection authorities as being unjustified and thus unlawful from data protection perspective.

In addition, the Occupational Safety and Health Regulation specifies the following key aspects of the Occupational Safety and Health Standard in more precise terms:

  • Workplace design and the arrangement of sanitary rooms, canteens, break rooms
  • Ventilation and ensuring sufficient protective distances as well as mouth-nose-covering and personal protective equipment
  • Working from home
  • Organization of working time and breaks
  • Business trips and meetings
  • Work equipment and tools
  • Storage of work clothing and personal protective equipment
  • Access to workplaces and occupational premises by persons not belonging to the company
  • Instructions for action in suspicious cases
  • Consideration of mental stress
  • Instruction and active communication
  • Definition of short-term contacts as face-to-face contacts between persons with a cumulative duration of less than 15 minutes
  • Reduction of changing internal personal contacts through division of equal shifts or work groups

Conclusion

Despite the fact that not all questions relating to occupational health and safety in times of the corona pandemic have yet been answered, the specifications in the Occupational Safety and Health Regulation create a higher level of legal certainty for the employer.

Click here to access the German version.

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