The revised Coronavirus Occupation Health and Safety Regulation in a nutshell
Faithful to the “tried and tested” motto
On 31 August 2022, the Federal Cabinet adopted a new Occupational Health and Safety Regulation for Dealing with the SARS-CoV-2 Virus (Corona-ArbSchV). The revised law gives employers responsibility for implementing the measures. There is no longer any obligation to implement specific measures.
The flu season will soon be upon us. Occupational health and safety measures are needed to protect workers against the SARS-CoV-2 virus. The Omicron variant has been circulating in Germany since January 2022 but has resulted in proportionately fewer serious illnesses. However, the total number of those with the virus was ten times higher in Sumer 2022 compared to the past two summers. In response to the rate of infection with the Omicron variant, for which vaccinated persons have also tested positive multiple times, and the resulting high levels of illness in the workforce, the Federal Ministry for Labour and Social Affairs (BMAS) found it necessary to prepare a proposal for a draft bill for a new Corona-ArbSchV. The new Corona-ArbSchV will enter into force on 1 October 2022 and will apply initially until 7 April 2023.
On 24 August 2022, the BMAS released a draft bill for a revised Corona-ArbSchV. It required employers to again offer employees the possibility to work from home and to provide rapid tests. However, the version adopted by the Federal Cabinet on 31 August 2022 only requires employees to assess various measures as part of the company hygiene concept. In contrast to previous versions of the Corona-ArbSchV, there is no longer any obligation to implement specific measures.
Company hygiene concept measures
The focus of the new occupational health and safety measures is the obligation for employers to establish a company hygiene concept. This hygiene concept should evaluate the well-known and proven measures for protection against infection and establish and implement the measures that the company considers necessary. In this respect, the employer does not have a direct obligation to implement the measures. Instead, the employer must evaluate, based on its own risk assessment in accordance with §§ 5 and 6 of the Occupational Health and Safety Act, whether it should implement certain measures within the company to the extent that the operational requirements allow. In this respect, the employer can consider the regional occurrence of infection, as well as the specific risks of infection for the activities performed. According to the draft bill, the BMAS has based the list on the measures that have proven both practical and effective during the pandemic.
Employers should pay particular attention to the following measures when evaluating the company hygiene concept:
- Maintaining a minimum distance of 1.5 metres between persons
- Ensuring hand hygiene
- Adherence with etiquette for coughing and sneezing
- Airing interior areas following infection protection guidelines
- Reducing contacts between persons for operational reasons
- The offer for employees to carry out appropriate activities from home where no operational reasons would prevent it
- The offer for workers who cannot work solely from home to test themselves regularly for free.
To avoid the spread of infection through droplets, a minimum distance of 1.5 metres between two persons should be maintained. Where the distance falls below this minimum and health and safety measures are insufficient, employers must make protective face masks available to employees.
Suitable hand hygiene rules must also be established. According to the explanatory memorandum to the draft bill, this will be guaranteed if the employer makes available cold water, soap and disposable towels or suitable hand sanitiser.
The avoidance or at least the reduction of contact between persons within the workplace is the last suitable measure. Employees should, for example, avoid using the same rooms or vehicles or split employees into teams that are as small as possible. Business trips or other in-person meetings should be reduced to only those which are necessary to continue operations.
The new version of the Corona-ArbSchV no longer mentions avoiding contact, but merely from a reduction in contact. Employees should, for example, avoid using the same rooms or vehicles or be split into teams that are as small as possible. Business trips or other in-person meetings should be reduced to only those which are necessary for continued operations.
No obligation to offer employees to work from home
In adopting the new version of the Corona-ArbSchV, the Federal Cabinet decided that employers should no longer be obliged to offer employees the opportunity to work from home. When evaluating the company hygiene concept, the employer should merely assess whether an offer to work from home should be made to employees and whether such an offer should be implemented as part of the hygiene concept. In the view of the BMAS, allowing employees to work from home has proven to be a good way to avoid unnecessary contact with other persons at work. Despite this fact, the Federal Cabinet succumbed to pressure from the FDP and stopped short of imposing a strict obligation to allow employees to work from home. Instead, employers are free to decide whether to offer their employees the opportunity to work from home. In so doing, the company must assess whether the tasks performed by the employee can be performed from home or whether operational needs rule out working from home. This will be the case when operations would otherwise be significantly restricted or could not be maintained. Such activities include processing and distributing incoming post, processing incoming and outgoing goods, and counter or janitorial services.
When looking at the overall picture, the employer must also consider that working from home can make it easier to combine private life and work, e.g., for employees who have additional care responsibilities for dependents due to the Coronavirus. The draft bill names caring for a sick child as one such additional care responsibility. This relates specifically to circumstances brought about by the Coronavirus, such as the needs of employees with disabilities or with health factors which would put them at risk for a severe case of infection (e.g., weak immune system).
Where the offer to work from home is made, the employee will not have any obligation to accept the offer. It will still be necessary for the employee’s home to fulfil the necessary technical and spacial requirements and for an agreement on working from home to be concluded between the employer and workers. Such an agreement could, for example, be contained in an individual employment contract or works agreement.
Option for employees to be immunised
In accordance with § 3 of the Corona-ArbSchV, employers must make it possible for their employees to be immunised against the Coronavirus during working time. This provision regulates the employer’s support obligations with respect to the provision of the necessary personnel, rooms, amenities, devices, and resources.
All in all, the new version does not contain any completely unknown rules. Instead, a weakened variant of the familiar rules will enter into force in October. For most employers, therefore, the assessment requirement that will apply from 1 October 2022 will not cause any significant difficulties. Most rules will already be implemented within the company, and many have remained unchanged.
At a glance
As an employer, what do I have to consider from 1 October 2022?