Update: Occupational Health and Safety During the Pandemic

Orrick - Employment Law and Litigation

For as long as the threat of infection from COVID-19 remains, businesses will have to maintain a safe and healthy workplace to an increased degree. In order to clarify and sort out the large number of recommendations, the German government has updated the SARS-CoV-2 Occupational Health and Safety Standard for employers from April 2020 of which we had highlighted the key points here. It has also updated the SARS-CoV-2- Occupational Health and Safety Rule which serves as concretization of the Health and Safety Standard.

General Employer Health and Safety Duties

The Health and Safety Rule was jointly prepared by the occupational health and safety committees at the Federal Ministry of Labor and Social Affairs under the coordination of the Federal Institute for Occupational Safety and Health (BAuA). The purpose of the detailed Health and Safety Rule is to provide employers with a “state of the art”.

The goal is to protect the health of all employees during the pandemic, improve population protection by interrupting chains of infection, reduce risks of infection in the workplace and prevent new infections.

In particular, businesses will have to review the possible risks to employees and others and reassess their practices already implemented by the most businesses. Employers shall take measures to reduce the number of unprotected contacts between persons (also indirect contact via surfaces) as well as the concentration of viruses in the working environment as far as possible. Suitable measures for this purpose include, for example, adherence to the social distancing rule, working in fixed teams, separating zones by technical measures, increased ventilation, isolation of sick persons, intensified surface cleaning and additional hand hygiene.

Key Points of the Rules 

Here are the key points of the Occupational Health and Safety Rule:

  • Social Distancing: Employers shall arrange a minimum distance of 1.5 m between employees and between employees and other persons (customers, suppliers, etc.). Internal traffic routes can be visually defined, if necessary, distance markings can be placed on the floor.
  • Partition Walls: The physical separation of workplaces by means of partition walls is intended to separate the breathing zones between employees. The partition walls should comply with the following minimum height: 1.50 m between seated persons, 1.80 m between seated persons and persons facing each other, 2.00 m between standing persons.
  • Face Masks: If the required safety distance of 1.5 m cannot be maintained and technical measures such as partition walls between workplaces are not possible, face masks must be provided to the employees. Subject to the infection risk resulting from the risk assessment, medical masks or FFP 2 masks should be provided.
  • Hygiene: Employers may offer suitable and moisturizing hand disinfectants, provide facilities for hand hygiene in canteens and break rooms and clean sanitary rooms at least once every working day.
  • Workplace Ventilation: Regular ventilation with more frequent and longer ventilation times should be ensured at least every 60 minutes for 3 to 10 minutes each. If possible, employers should use room air systems with appropriate filters during working hours to reduce the concentration of viruses in the air.
  • Home Office: Employers must offer working from home where feasible during the pandemic; the key points have already been implemented in January 2021 and can be found here.
  • Personnel Planning: Teams should be created with defined tasks and responsibilities. With regard to the beginning and end of working hours and the allocation of breaks, suitable organizational measures must be taken to avoid, as far as possible, a close interaction of several employees (for example in break rooms, canteens, elevator).
  • Particularly Vulnerable Employees: Employers should assess individual measures for employees who are at high risk to be imposed to infections, for example due to pre-existing conditions.

Importance of the Risk Assessment

Every workplace and work organization is different. There is no one for all rule. Therefore, the employer’s duty to conduct a risk assessment and to identify the individual hazards in the workplace will play a crucial role in the infection protection. This duty does not only arise from the Health and Safety Rule but from the Occupational Health and Safety Act.

Employers are required to take the appropriate measures based on the outcome of the risk assessment. The risk assessment should be carried out together with company physicians and occupational safety specialists. In addition, employers must instruct their employees on infection protection measures in the workplace.

Employers must select their measures in a reasonable way and always keep in mind that technical measures have priority over organizational measures and these in turn have priority over personal measures which should always be the last means.

While the Occupational Health and Safety Rule of the Government is not binding but merely recommendatory, compliance with it is strongly recommended. If employers implement the technical, organizational and personal measures proposed, they can assume that they are acting in a legally secure manner.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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