Last year, the German Federal Ministry of Labor and Social Affairs (the Ministry) introduced specific health and safety regulations in the light of the pandemic. Today, the Ministry issued the new SARS-CoV-2 Occupational Health and Safety Regulation (COVID-19 Workplace Regulation), which will come into force on 27 January 2021. It refers to the regulations already in place, but it also clarifies that additional measures are necessary to limit the further spread of COVID-19.
Until now, distancing rules, hygiene measures, and masks had been the most important government-regulated workplace health and safety instruments in Germany. With the COVID-19 Workplace Regulation, additional temporary measures will be put in place—including extended employer obligations for offering employees the ability to work from home.
More specifically, the COVID-19 Workplace Regulation provides for the following additional measures:
The COVID-19 Workplace Regulation itself does not include potential sanctions for noncompliance (contrary to an initial draft). However, workplace safety authorities can request information and documents from employers to monitor compliance. This can include requests for employers to provide alleged compelling operational reasons that supposedly prevent them from offering employees the ability to work from home. If employers do not comply with such requests, they may ultimately be subject to sanctions under the German Occupational Health and Safety Act, including administrative fines of up to €30,000 or even a prohibition of business activities.
Thus, employers should verify whether their existing risk assessments require updating and whether pandemic-related measures already taken need to be adapted or extended in the light of the COVID-19 Workplace Regulation. In this context, mandatory co-determination rights of German works councils may also need to be observed.