(Last update: 16. April 2020)
Following the consultation between the federal and state governments on 15 April 2020, the restrictions on public life in order to contain the COVID19 epidemic are now to be gradually lifted from Monday, 20 April 2020.
On 16 April 2020, the Federal Ministry of Labor and Social Affairs [Bundesministerium für Arbeit und Soziales – BMAS] presented a "SARS-Cov2 Occupational Safety Standard" in this context. This sets out the minimum standards for an operational concept for temporary additional infection control measures. The exact wording can be found here.
The following points should be highlighted in particular:
- The employer bears sole responsibility for implementing the protective measures. It can seek advice from occupational safety specialists and company doctors as regards their implementation. Where a company has an occupational health and safety committee, it is also required to take an active role in the implementation of the protective measures.
- The published specifications are minimum standards that are to be supplemented and specified by the accident insurance institutions and, if necessary, by the supervisory authorities on a sector-specific basis. This means, for example, that the currently debated issue of the mandatory widespread use of gloves and masks for all employees in the retail trade could ultimately be prescribed by the employers' liability insurance association.
- Individual issues of practical relevance have still not been clarified. For example, persons with respiratory symptoms (unless, for example, this is a cold cleared by a doctor) or fever should generally not be on the premises and the employer must establish a procedure for clarifying suspected cases. It remains open, however, whether the employer is allowed to take fever measurements, because, unlike in other EU countries, no legal basis has been created for this, with the result that is not possible to completely dispel data protection concerns. It then depends - as so often - on the individual case. In our opinion, this should indisputably be permissible for companies located in a risk area with a high number of infected persons.
- The implementation of the occupational safety standards leads to the extensive involvement of the works council at the operational level. Many of the requirements are subject to co-determination pursuant to § 87 (1) No. 1 German Shop Constitution Act [Betriebsverfassungsgesetz – BetrVG] (company’s internal order) or § 87 (1) No. 7 BetrVG (occupational health and safety protection). Even if it is not to be expected that works councils will obstruct the implementation of the requirements and thus in many cases dispense with formal regulations, it must be noted that consequences against employees in the event of violations of these regulations can only occur if a shop agreement exists. In addition, in cases where additional personal data of employees are processed, the conclusion of a shop agreement will be required as the legal basis for the data collection (cf. § 26 (4) German Federal Data Protection Act [Bundesdatenschutzgesetz - BDSG]).