In response to COVID-19, the Federal Ministry of Labour and Social Affairs issued new occupational health and safety standards effective 16 April 2020. These standards apply directly and immediately to all companies where work is still being carried out or is being carried out on site again. The occupational health and safety standards are not directly binding, however, the courts will use them to assess the employer's duty of care in the event that the employees' health are impaired. Violations may result in plant closures. A speedy implementation of the standards is therefore urgently recommended. The co-determination rights of the works council in the context of occupational safety should also be observed, in particular to increase acceptance and enforceability vis-a -vis employees.
The two most important obligations for employers are:
- the provision of masks if the required minimum distance of 1.5 meters is not possible to implement within the workplace
- the employer must also prevent persons with respiratory symptoms or fever from being on the premises. In this case, the employer must establish a procedure for identifying suspected cases.
Among other things, the following additional points have also been regulated:
Employees should keep a sufficient distance (at least 1.5 metres) from other people. Where this is not possible despite measures of work organisation, protective measures must be taken (e.g. wearing masks). Sufficient ventilation must also be provided. In addition, desk work should be carried out in the employee’s home office if possible.
Sanitary rooms, canteens and break rooms
The obligations include the provision of antibacterial liquid soap and disposable paper towel dispensers as well as ensuring sufficient cleaning facilities and hygiene measures, and implementing regulations on food distribution.
Business trips and meetings
Business trips and in-person meetings should be reduced to the absolute minimum. Alternatively, telephone or video conferencing facilities should be used. Only where absolutely necessary, physical meetings should take place provided there is sufficient distance between the participants.
Ensuring sufficient protective distances
The use of walkways in and outside the buildings must be adapted so that sufficient distance can be maintained. In high traffic areas in the workplace, protective distances between standing areas should be clearly marked, e.g. with adhesive tape. Even when several employees work together, e.g. in assembly, the minimum distance between employees of 1.5 metres should be maintained. Where this cannot be guaranteed from a technical or organisational point of view, preventive measures (wearing masks) should be taken.
Organisation of working hours and breaks
Occupancy rates of work areas and shared facilities shall be reduced by measures for time equalisation (staggered working and break times, operating in shifts if necessary).
Storage and cleaning of work clothing
All work clothing must only be exclusively used on an individual basis. Work clothing must be stored separately from personal clothing. Work clothing must be cleaned regularly.
Access to workplaces and company premises by persons not belonging to the company
External access for visitors is to be kept to a minimum if possible. Contact details of visitors, the time of entering or leaving the workplace / premises must be documented. Visitors must also be informed about the measures currently enforced by the company to protect against COVID-19 infections.
Instructions for action in suspicious cases
Company regulations for the immediate identification of suspected COVID-19 cases must be established. Fever, cough and shortness of breath may be signs of infection with COVID-19. In this light the temperature of all persons on the premises should be are measured without contact if possible.
Employees with corresponding symptoms must be asked to leave the premises immediately or to stay at home.
Instruction and active communication
All preventive and occupational safety measures implemented must be communicated comprehensively within the company.
Obligation to wear masks?
The employer can regulate the wearing of masks for employees on a binding basis within the framework of a works agreement. Even without the conclusion of a works agreement, the employer is entitled, in our view, to order the wearing of masks at his own discretion. However, the masks must be procured and provided by the employer himself.
Co-determination of the works council for questions of occupational health and safety.
It is recommended that all companies implement these standards immediately in order to avoid possible liability cases and where possible, plant shutdowns. The works council has a right of co-determination in cases of occupational health and safety pursuant to § 87, Subsection 1, No. 7, BetrVG. We therefore recommend concluding a corresponding works agreement as soon as possible.
For more detailed information, read the Official Statement here.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021