Based on the decision of the Video Conference of the Federal Government and the Heads of the Government of the Federal States of 19 January 2021, the lockdown has initially been extended until 14 February 2021. Restaurants, leisure facilities and large parts of the retail trade will thus remain closed. In addition to the more stricter measures, the Minister Presidents of the federal states agreed with the Federal Chancellor, among other things, to largely endorse the draft resolution of the Federal Ministry of Labour and Social Affairs [Bundesministerium für Arbeit und Soziales, BMAS] on stricter regulations in the occupational context in order to reduce contacts both at the workplace and on the way to work. The regulations of the new German SARS-Cov2 Occupational Health and Safety Ordinance [SARS-Cov2-Arbeitsschutzverordnung, Corona-ArbSchV], which are explained in more detail below, will enter into force 5 days after their promulgation, i.e. presumably on 27 January 2021, and will initially apply for a limited period until 15 March 2021.
Home office regulations
According to the new Ordinance, additional special occupational health and safety measures will be imposed on all employers - regardless of their size and any 7-day incidence levels - beginning 27 January 2021.
These measures include, on the one hand, that employers must review and document the risk assessment according to §§ 5 and 6 German Occupational Health and Safety Act [Arbeitsschutzgesetz, ArbSchG] with respect to "additional and necessary measures" of the company's infection protection policy.
"In the case of office work or comparable activities", employers must allow work from a home office unless there are compelling opposing operational reasons.
According to the FAQs on the website of the BMAS, this concerns all activities that are suitable to be carried out using information technology from the employee’s private sphere. In individual cases, however, this may also include activities that can be performed from home without using information technology.
Since the regulations of the Corona-ArbSchV are obligations under occupational health and safety law and thus under public law, employees should not be able to justify a legal claim to work from a home office on this basis.
Nevertheless, employers have the aforementioned duty to check, and should this lead to the assumption that such activity is capable of being carried out from the home office, and this is not opposed by compelling operational reasons, the employer must offer this to the employee - ideally in a verifiable manner.
According to the BMAS, compelling operational reasons that could oppose the enabling of work from the home office could be, for example, if the remainder of the business could otherwise only be maintained to a limited extent or not at all. This includes, in particular, ancillary activities associated with office work, such as processing and distributing incoming mail, processing incoming and outgoing goods, counter services for customer and employee contacts that are still necessary, issuing materials, repair and maintenance tasks (e.g. IT service), caretaking services and emergency services to maintain operations, possibly also ensuring first aid (see FAQ on the Corona ArbSchV of the BMAS).
In the opinion of the BMAS, technical or organisational reasons and failures, such as the unavailability of necessary IT equipment, required changes in the work organisation or the insufficient qualification of the employees concerned, can at best be asserted for a limited period of time until the swift removal of the grounds for its prevention.
An important point: employees are not obliged to work from home, but the Federal Government and the Conference of the Heads of the Government of the Federal States [Ministerpräsidentenkonferenz, MPK] appeal to employees to take advantage of the offer.
In addition, business-related meetings of several people are to be reduced to the minimum necessary for the business and, if possible, replaced by the use of information technology. If the use of information technology is not possible, the employer must ensure the "equivalent protection" of employees by means of other suitable protective measures, in particular ventilation measures and suitable divisions between the persons present.
Reduction of room occupancy, permanent working groups
The new Corona Occupational Health and Safety Ordinance also provides for a reduction in room occupancy in workplaces. Should the simultaneous use of rooms by more than one person be necessary, a minimum area of 10 square metres for each person in the room must not be fallen short of, insofar as the activities to be carried out permit this.
In businesses with more than 10 employees, employees are to be divided into the smallest possible working groups and contacts between the individual working groups in the course of operations, as well as changes in this allocation, are to be reduced to the minimum necessary for the business. Time-delayed work is to be made possible, to the extent operational circumstances permit this.
Provision of medical masks
If, after the appropriate check, the activity cannot be carried out from a home office but only with the employee’s presence, employers are obliged to provide their employees with medical face masks (surgical masks or also masks of the KN95/N95 or FFP2 standards) if the above-mentioned requirements for room occupancy cannot be met or if the minimum distance of 1.5 metres cannot be maintained or if increased aerosol emissions are to be expected during the work performed. In these cases, employees must also wear the medical masks provided by the employer – as opposed to their own fabric masks, for example.
According to the announcement by the Federal Minister of Labour, Hubertus Heil, compliance with the new regulations is to be monitored by the competent occupational health and safety authorities, which can demand that employers provide them with the information and documentation necessary to carry out their monitoring duties. If the employer fails to comply with official orders, it may be threatened with a prohibition of the work activity at the business (§ 22 (3) sentence 3 ArbSchG). Furthermore, fines of up to EUR 30,000 may be imposed if the employer fails to comply with an enforceable official order.
Implementation of the employer’s duty to check the possibility of working from home
In accordance with the new regulations, all employers must check, at the latest when the Corona-ArbSchV comes into force, whether the employee’s work is capable of being conducted from a home office.
If the work can also be performed from a home office and there are no compelling opposing operational reasons, working from home should be offered to the employee and the offer should be documented.
If the employee accepts the offer, an agreement should be concluded with the employee to this effect. In this respect, the Occupational Health and Safety Ordinance provides within the explanatory notes to the Ordinance that employees are not under any obligation to accept and implement the offer to work from home. Rather, the implementation of home office work presupposes that the spatial and technical prerequisites are given in the employee's home and that an agreement regarding home office has been reached between the employer and the employee, for example by individual contractual regulation or by shop agreement.
Rejection of the home office offer by employees
But what happens if the employee refuses to work from a home office, where such home office work is possible in principle? In this case, the employee is fundamentally entitled to perform his work duties in person at the company. In this case, the employer is subject to the more extensive obligations under the aforementioned SARS-CoV-2 Occupational Health and Safety Ordinance.
If, however, a large number of employees reject the offer to work from home, with the result that there is a particularly increased risk of infection for the employees working at the business, the employer may, in exceptional cases, be entitled to unilaterally order the employee to work from the home office at least temporarily, by way of an extended right of direction and after weighing the mutual interests in the individual case. This is because a statutory ordinance on occupational health and safety law cannot change the legal evaluation of § 106 German Industrial Code [Gewerbeordnung, GewO].
In exceptional cases, therefore, in the event of an acute risk situation, the employer may unilaterally order work to be performed from home on the basis of the duty of care contained in the employment contract arising from § 241 (2) German Civil Code [Bürgerliches Gesetzbuch, BGB] and the principle of good faith (§ 242 BGB) if this is the only way in which it can comply with its duty of care and if the employee's interests have been adequately taken into account in the discretionary decision. The question of the permissibility of unilaterally ordering work from home thus decisively depends on the circumstances of the individual case and cannot be answered generally.
As the Corona Occupational Health and Safety Ordinance is presumably already going to enter into force on 27 January 2021, employers should already prepare for the "risk assessments" they will now have to carry out in respect of the workplaces existing at their business, as well as the question of the suitability for home office work, and set up processes for the corresponding documentation.
We would be happy to advise you, if required!