(Status: 12 August 2020)
Occupational health and safety is back in focus. The new SARS-CoV2 Occupational Health and Safety Regulation has been cleared and will affect all companies.
The German Federal Ministry of Labor and Social Affairs (BMAS) cleared the new SARS-CoV2 Occupational Safety Regulation for publication in the Joint Ministerial Gazette yesterday, 11 August 2020. It will enter into force in August 2020.
The basis for the new regulation is the existing epidemic situation of nationwide concern caused by coronavirus according to § 5 of the German Infection Protection Act (Infektionsschutzgesetz). For the identified duration of the epidemic, the SARS-CoV2 Occupational Safety and Health Regulation stipulates additionally required occupational safety and health measures to ensure protection against infection at the workplace as well as the general measures described in the SARS-CoV2 Occupational Safety and Health Standard of 16 April 2020.
The aim is to reduce the risk of infection for employees and to prevent new infections during the course of day-to-day business.
Clarification of uncertainties
In future, employers who comply with the concretization of occupational health and safety standards specified in the SARS-CoV2 Occupational Health and Safety Regulation can proceed on the basis that they are in compliance with the relevant requirements of the Occupational Health and Safety Act and the ordinances relating to the Occupational Health and Safety Act, including the Workplace Ordinance with its technical rules for workplaces.
For employers, this means that they will then be able to prove that they are fulfilling their duty of care vis-à-vis their employees. At the same time, the new regulation serves as a benchmark for consultations with employee committees and shop agreements based on them.
Monitoring by the health and safety authorities
Since the new regulation is intended to concretize the existing occupational health and safety regulations, compliance with the regulation can be monitored by the occupational health and safety authorities (including the trade supervisory authority). Thus, it is also clear that the powers and the sanctions regime of the Occupational Health and Safety Act (ArbSchG) are available to the authorities; this begins with unannounced inspections of businesses and, in particularly serious cases of non-compliance with the regulation, can go as far as the closure of businesses.
The essential facts
The SARS-CoV2 Occupational Health and Safety Regulation contains a multitude of important clarifications regarding operational practice, which means that responsible officers should familiarize themselves with them immediately.
At this point, may we draw your attention to two superordinate complexes:
In further concretization of § 4 ArbSchG, Section 4.1 of the regulation clarifies that the "TOP principle" applies. This means that technical measures take precedence over organizational measures and these in turn take precedence over personal measures. This principle applies to all protective measures to be taken and is thus tantamount to a dogma. In practice, this means that in all cases in which the employer takes personal measures (e.g. the obligation to wear a mouth-nose cover, the obligation to attend face-to-face meetings), it must always first check - and in case of doubt also document - why it is taking such personal measure.
As was to be expected, a topic of central focus is the "home office". To begin with, the provision in Section 2.2 clarifies that the "home office" - as long as it does not constitute teleworking - is a form of "mobile work". Thus, the "home office", which is currently being practiced frequently, does not fall within the scope of application of the Workplace Ordinance. In addition, Section 4.2.4 sets out specific requirements for working in a "home office" (including a list of concrete specifications on working time, ergonomics in the home office), which correspond with the specifications of further occupational health requirements and obligations of the employer in Section 5.2.4.