INTRODUCTION OF AN OCCUPATIONAL HEALTH AND SAFETY STANDARD DURING THE CORONAVIRUS PANDEMIC

On April 16, 2020, Federal Minister of Labour and Social Affairs (Bundesminister für Arbeit und Soziales) Hubertus Heil and the CEO of the German statutory accident insurance (Deutsche Gesetzliche Unfallversicherung) Dr. Stefan Hussy presented a unified occupational health and safety standard for the duration of the Coronavirus pandemic. Special occupational safety measures are to be taken to protect the health of employees, restore economic activity and to protect the population by interrupting the chains of infection. The regulations apply with immediate effect.

RESPONSIBILITY FOR OCCUPATIONAL HEALTH AND SAFETY LIES WITH THE EMPLOYER

The employer’s general duty of care for his employees is based on § 618 BGB. The public law on occupational health and safety defines the (minimum) standard for this. The authorities also further monitor compliance with the public law on occupational health and safety. Violation of such protective duties may result in supervisory measures such as restrictions and fines. Under private law this can lead to claims for damages by persons working in the company or recourse claims by the accident insurance company.

The SARS-CoV-2 Occupational Health and Safety Standard sets the minimum standard of protective measures to be taken in response to the Coronavirus pandemic. Further concretization for individual sectors can be provided by the accident insurers if required.

The SARS-CoV-2 Occupational Health and Safety Standard also points out that the responsibility for implementing necessary infection protection measures lies with the employer and that these are based on the results of the risk assessment. For this purpose, the employer must consult with company physicians, occupational safety specialists and worker representation bodies. If an occupational health and safety committee has been formed in a company, it should coordinate the implementation of infection control measures and support the employer in monitoring their effectiveness. Alternatively, it is recommended to set up a coordination or crisis committee with the involvement of the company physician, the occupational safety specialist and the works council.

GENERAL INFECTION PREVENTION MEASURES

The SARS-CoV-2 SARS-CoV-2 Occupational Health and Safety Standard specifies two basic infection prevention measures. Firstly, if the minimum distance cannot securely be maintained in the workplace, the employer should provide mouth and nose covers to be worn by employees.

Furthermore, persons suffering from respiratory diseases or fever should not stay on the premises. Exceptions may apply if the premises are considered critical infrastructures according to the RKI recommendation or if a doctor has explicitly clarified that it is only a cold, for example. For this, the employer must establish a process for clarifying suspicious cases. This can be done within the framework of infection contingency plans.

SPECIFIC MEASURES

The Occupational Health and Safety Standard also specifies a number of specific technical, organisational and personal measures for the prevention of pandemics, as follows:

• Employees should keep a safe distance (at least 1.5 meters) from other people during their work. If this is not possible even through work organisation measures, alternative protective measures must be taken. Transparent dividers must be installed where there is public traffic and preferably also to separate workplaces with an otherwise non-existent safety distance.

• As far as possible, office work should be carried out at home. Otherwise, the available space capacities for office workplaces must be used and work organised in such a way that multiple occupancy of rooms can be avoided or sufficient safety distances are provided. Business trips and face-to-face meetings should be reduced to the absolute minimum and the required distance should be maintained.

• Soap and towel dispensers must be provided for hand-cleaning. The hygiene of the premises must also be improved by extended cleaning measures, such as cleaning door handles. In break rooms and canteens, the necessary distances must be ensured and queues must be prevented. If necessary, closure of these areas should be considered. The occupancy density of work areas and shared facilities is to be reduced by measures for temporal equalisation such as flexible working hours and break times or, where appropriate, shift operation. Regular airing of the facilities is also recommended.

• Tools and work equipment are to be used on a personal basis wherever possible. Where this is not possible, protective gloves must be worn or regular cleaning must be provided, especially before handing them over to other people.

• The access of external parties should be kept to a minimum.

• Finally, comprehensive communication about the introduced prevention and occupational safety measures must be ensured in the company. Moreover, individual preventative occupational health check-ups should be offered, in particular, individual consultations by the company physician. In the event of special hazards due to a previous illness or individual disposition, the company physician can suggest further protective measures to be implemented to the employer.

IMPLEMENTATION/CO-DETERMINATION OF THE WORKS COUNCIL

Employers should align their safety plans for dealing with the pandemic with the Occupational Health and Safety Standard. Also important is the communication with employees. Since many of the proposed measures also trigger co-determination rights of the works council, employers should promptly agree with the works council on the implementation of “Coronavirus works agreements”.