Germany: Relief for COVID-19 occupational health and safety

Declining infection figures and progress in the COVID-19 vaccination programme has prompted the German Federal Government to adapt the “SARS-CoV-2 Occupational Health and Safety Ordinance” (Corona-ArbSchV) (the Ordinance). The new regulations will come into force on July 1, 2021.

The amendments to the Ordinance (see also blogs dated April 20, 2021 and January 27, 2021) provide changes to the obligation to work from home, the obligation to reduce contact in the workplace, the obligation to offer tests and the obligation to update operational procedures for hygiene protection.

Testing

The previous obligation to offer tests remains, by which employers must offer employees who do not work exclusively from home, a COVID-19 test at least twice a week free of charge. These tests must be approved by the Federal Institute for Drugs and Medical Devices. An amendment to the regulation provides that employers can waive this obligation in individual cases, provided that an equivalent protection of their workers exists by other suitable protective measures or an existing equivalent protection can be proved, such as that the employee is fully vaccinated or has recovered from the infection. The regulation however, does explicitly clarifiy that this does not provide any new right to the employer on information as to whether an employee has been vaccinated or has recovered from COVID-19.

Documentation obligations

The employer is currently still obliged to keep evidence of the procurement of tests and any agreements with third parties on the testing of employees. This obligation will end on September 10, 2021.

Employer’s offer to work from home

The obligation on the employer to offer working from home as well as the obligation on employees to accept this offer has already expired with the end of the so-called “federal emergency brake” on June 30, 2021. This is set out in Section 28b (7) German Infection Protection Act.

The amended Ordinance will come into force on July 1, 2021 and will remain in force until the German Bundestag has repealed the declaration of an epidemic situation of national significance, but no later than the end of September 10, 2021.