Update legislative changes: federal powers and home office obligation

Today, the "Fourth Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance" [Viertes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite] comes into force with amendments to the German Federal Infection Protection Act [Bundesinfektionsschutzgesetz, IfSG]. Hubertus Heil has also announced an amendment to the SARS-CoV-2 Occupational Health and Safety Ordinance [SARS-CoV-2-Arbeitsschutzverordnung, SARS-CoV-2-ArbSchVO] next week. Jörn Kuhn and Annabelle Marceau summarise the adaptations and amendments.

Introduction of the "nationwide emergency brake”

The amendment to the IfSG grants the federal government original federal state powers to regulate protective measures at the state level in order to prevent the spread of coronavirus disease-2019 (Covid-19) in the event of particularly high infection.

The nationwide emergency brake, which is regulated in the newly inserted § 28b of the IfSG, stipulates the following measures if an incidence rate of 100 is exceeded in a district or independent city for three consecutive days:

• Contact restrictions for private meetings indoors and outdoors;
• No closure of shops in the sectors foodstuffs, consumer goods for daily use and existential services;
• Close-contact services only for medical, therapeutic, nursing or pastoral purposes with a daily negative corona test;
• Closure of the catering sector and hotels, leisure and cultural facilities with the exception of outdoor areas of zoological and botanical gardens and a current negative test, exemptions for sports;
• Night-time curfew between 10 pm and 5 am with exceptions;
• Closure of the retail trade (click & meet) as of an incidence rate of over 150;
• No face-to-face schooling in case of an incidence rate of over 165.

Inclusion of the home office obligation into the IfSG

The current SARS-CoV-2 Occupational Health and Safety Ordinance already stipulates the employer's obligation to enable employees to carry out office work or comparable activities in their homes - provided there are no compelling operational reasons opposing this. This obligation has now been incorporated into the amended IfSG and will be deleted from the Occupational Health and Safety Ordinance next week.

However, the IfSG regulates the home office more extensively than the previous Occupational Health and Safety Ordinance. Now, employees are also obliged to accept the offer to work from home wherever this is fundamentally possible for them. This de facto creates an obligation to switch to home office work.

In a first step, the employer must check whether home office work is possible for operational reasons. In this connection, the explanatory memorandum to the Act states that operational reasons may exist if business operations would otherwise be significantly restricted or could not be maintained at all. Technical or organisational reasons, such as the unavailability of the necessary IT equipment, required changes to the work organisation or the insufficient qualification of the employees in question can usually only be given as reasons on a temporary basis.

Employees then have carry out their work in the home office if, in their view, there are no reasons to oppose this. Such opposing reasons according to the explanatory memorandum to the Act are, for example, a constriction of space, disruptions by third parties or insufficient technical equipment.

The employer is subject to corresponding documentation obligations vis-à-vis the competent enforcement authorities. Here, the explanatory memorandum to the Act specifies that, at the request of the competent authority, the employer must explain why the home office measure cannot be implemented. Accordingly, the employer not only has to document the operational reasons within its sphere which oppose the implementation of the home office rule, but must also document the "private" reasons given by the employee opposing his/her working from home. In this context, the employer can demand a notification from the employee to the effect that he/she cannot work from home. With this, the employer fulfils its burden of representation. The level of detail to which the employee's reasons must be explained and whether the employer is obliged to check these reasons are not regulated.

In our view, data protection considerations oppose such an obligation. Also in terms of employment law, it will not be possible to implement consequences against an employee who conceals the real reasons for not working from home.

Planned adaptation of the SARS-CoV-2 Occupational Health and Safety Ordinance

In the coming week, the SARS-CoV-2 Occupational Health and Safety Ordinance is also going to be amended once again within a short period of time.

In addition to the deletion of the home office regulation previously contained in the Occupational Health and Safety Ordinance, employers are now going to be fundamentally obliged to make at least two PCR or antigen rapid tests per week available to employees. This would eliminate differentiation according to company location and areas of work. In addition to this, the previously applicable hygiene regulations (in particular the so-called “AHA” rules on social distancing, hygiene and face masks) still have to be observed.

According to the currently valid Occupational Health and Safety Ordinance, the employer must keep corresponding evidence of the procurement of tests for at least four weeks. The intention is now to extend this retention obligation until 30 June 2021 on grounds that cause for checks exists throughout the entire period of validity of the Ordinance, i.e. until 30 June 2021. As proof of the procurement of the test resources, proof of an order for the required test quantities suffices.

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