The obligation of employers in Germany to offer working from home ended as of July 2021. However, employers still must offer employees an antigen rapid or self-test at least twice a week and must implement company hygiene concepts for infection protection. Moreover, the obligation to wear mouth-nose protection generally remains.
The current infection situation in Germany is increasingly stabilising particularly due to the progress of vaccination. However, the increasing spread of the new delta mutation in Europe is worrying. In order not to compromise the positive development in Germany, the occupational health and safety measures of the Covid-19 Occupational Health and Safety Regulation ("Regulation") were therefore initially extended until 10 September 2021 in order to continuously ensure the comprehensive protection of employees at the workplace against a Covid-19 infection. To this end, an adjusted version of the Regulation came into force on 1 July 2021 with the following content:
1. Home office obligation is repealed
Employers will no longer be obliged to allow their employees to work from home. The obligation to offer working from home ceased on 30 June 2021. However, working from home as an effective measure to reduce personal contacts must continue to be evaluated by employers when establishing company hygiene concepts.
2. Risk assessment and hygiene concept
Employers remain obliged to carry out a risk assessment in their company with regard to additionally required infection protection measures. Based on this assessment, company hygiene concepts for infection protection must be established and implemented. The obligation to wear mouth-nose protection generally remains as well. However, employers will in future only be obliged to provide medical masks where technical or organisational measures are no longer sufficient for comprehensive infection protection. This is the case, for example, if the minimum distance of 1.50 m cannot be maintained indoors or if intensive ventilation of the premises cannot be ensured.
3. Contact reduction at the workplace
Employers must also take all appropriate technical and organisational measures to reduce contact between employees at the workplace. In this context, the simultaneous use of rooms by several employees must be kept to the necessary minimum. In rooms occupied by several persons, however, a minimum area of 10 m² per employee is no longer required.
4. Obligation to offer tests
In addition, employers are obliged to offer employees working on site an antigen rapid or self-test at least twice a week. Employees who have already been fully vaccinated or have recovered from Covid-19 disease generally do not need to be offered testing, provided the employer is informed of the vaccination or recovery status. The disclosure of this information by the employee is voluntary.
The obligation to implement the above-mentioned occupational health and safety measures ends as soon as the epidemic situation is repealed by the German Federal Government, at the latest on 10 September 2021, if the Regulation is not extended again. It therefore remains to be seen over the next few weeks and months whether the pandemic can be further brought under control or whether a renewed extension of the Regulation and, if necessary, i.a. a return to working from home will be necessary.
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