To combat and prevent the further spread of COVID-19 (the SARS-CoV-2-virus), the German government has issued a new “SARS-CoV-2 Occupational Health and Safety Ordinance” (Corona-ArbSchV) (the Ordinance) providing for additional and time-limited measures to reduce workplace-related personal contacts. These measures include the obligation for employers to offer their employees home working, unless there are compelling operational reasons not to do so. In addition, existing occupational health and safety regulations will be tightened.

Updating the risk assessment

Under Section 2 (1) of the Ordinance, employers must review and update the mandatory risk assessment with regard to the new, additional infection control measures. It should be noted that existing occupational health and safety regulations and the “SARS-CoV-2 Occupational Health and Safety Rule” issued last year continues to apply.

Employer’s offer of home working

Offering employees the ability to work from home is legally permitted and a legitimate intent in the fight against COVID-19. However, it is up to the employer to review and decide whether an activity is suitable for working from home. The Ordinance requires employers to offer working from home to employees carrying out office work or comparable activities unless there are compelling operational reasons to the contrary. These reasons include, for example, where activities can’t be carried out at home for verifiable and comprehensible operational reasons which would result in the remaining business only being maintained to a limited extent or not at all. Technical or organizational failures can be claimed for a limited period of time and only until the reason for the prevention is immediately eliminated. This applies for example to the unavailability of required IT equipment, changes required in the organization of work or insufficient qualification of employees.

On the part of the employees, there is no obligation to work from home. The Ordinance does not provide for a legal right to work from home and so no subjective right of action to claim home working. Employees who wish to work from home but are denied the right to do so should first contact their company representatives or the supervisory authorities and assert their right to complain to the supervisory authorities in accordance with Section 17 of the German Occupational Safety and Health Act (ArbSchG). If the employee agrees to the employer’s offer then, the employer must ensure that all spatial and technical requirements are met in the employee’s home. In addition, an agreement must be reached between the employer and the employee (either by way of an employment contract or a works agreement) regarding home working.

Documentation obligations

Employers should document the steps taken. The occupational health and safety authorities and the employers’ liability insurance provider can request the necessary information and copies of documentation from the employer in order to check the implementation of the obligation to offer home working. If the employer refuses to offer home working, he is obliged to give reasons. Furthermore, according to Section 22 (2) ArbSchG, the occupational health and safety authorities have the right to inspect and examine the workplace; violations may result in a ban on activities. In preparation for possible inspections, the “compelling operational reasons” should therefore be documented as part of the risk assessment, possibly in the form of checklists or forms. Further, the offer and, if applicable, the rejection of the offer by the employee should also be documented.

Social distancing and face coverings

In addition, the Ordinance contains stricter protection rules for employees who cannot work from home. If several people are working in one room, there must be at least 10 square meters of space available per person. As soon as more than ten employees work in a company, they must be divided into fixed work groups that are as small as possible. Company-related meetings should be kept to a minimum.

If the minimum distance of 1.5 meters cannot be maintained at the workplace, protective mouth-nose masks must be worn. For this purpose, the employer must provide medical masks, FFP2 masks or types of masks listed in a separate appendix, and bear the cost of these. The employee is obliged to wear them. These masks may be worn for no more than the duration of a work shift and must be changed if they become soaked or contaminated. Workers must be instructed in the wearing of medical masks by a competent person.

Conclusion

The Ordinance imposes further obligations on employers in the fight against COVID-19 and interferes to a considerable extent with the employer’s organizational sovereignty and the reality of work, for which the enactment of a law would usually have been required. Nevertheless, in view of the capacity of the authorities, inspections or measures pursuant to Section 22 ArbSchG are only likely to be considered if employees complain to the occupational health and safety authorities about the employer’s refusal to comply. Those regulations do not allow for employers to be fined. A ban on activities/operation prohibition in accordance with Section 22 (3) Sentence 3 ArbSchG in the event of violations is theoretically possible, but is only likely to come into effect in exceptional cases after a prior request for remedial action.

The Ordinance provides employees with starting points for requesting the employer to hold talks or negotiations about working from home. Works councils can also take the initiative to monitor and enforce compliance with this legal regulation by asserting information claims in accordance with Section 80 of the Works Council Constitution Act (BetrVG).

The Ordinance comes into force on January 27, 2021 and is initially limited in time until March 15, 2021. Companies should be prepared for the possibility that it will be extended and used for a general home working initiative.

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