Co-Determination of the works council of a hospital in the design of a visitor concept during the corona pandemic

Cologne Regional Labor Court 22 January 2021 - 9 TaBV 58/20

In a temporary injunction proceeding, the Cologne Regional Labor Court has granted a hospital works council the right to co-determination on the design of a visitor concept during the SARS-COV2 pandemic. The works council was allowed co-determine in the matter because it concerned company regulations on health protection pursuant to Section 87 (1) No. 7 of the German Works Council Constitution Act (BetrVG).

Facts 

The Cologne Regional Labor Court had to deal with the following case in temporary injunction proceedings at the beginning of this year: The employer operates a hospital with approximately 850 employees. In the course of the Corona pandemic, it had introduced a system for documenting the access and stay of external persons on the hospital premises without the involvement of its works council. At the request of the works council, the Siegburg Labor Court set up a conciliation body to regulate the visitation concept. 

Decision

The Cologne Regional Labor Court, which was then appealed by the employer, upheld the decision of the Labor Court, rejected the employer's complaint and affirmed the works council's right of co-determination pursuant to Section 87 (1) No. 7 BetrVG. According to the Cologne Regional Labor Court, the works council's right of co-determination with regard to company regulations on health protection relates to measures taken by the employer to prevent damage to health, which concretize framework regulations. Section 5 (1) of the North Rhine-Westphalia Corona Protection Ordinance represents such a framework regulation, which also aims to protect the health of employees. Specifically, § 5 para. 1 states:

"Hospitals, preventive care and rehabilitation facilities, full inpatient care facilities, outpatient care services and special residential forms of integration assistance, facilities and services for the homeless, and similar facilities shall take the necessary measures to make it more difficult for coronaviruses to enter and to protect patients, residents, and staff. In particular, the guidelines and recommendations of the Robert Koch Institute are to be observed. Visits are permitted on the basis of a facility-specific visit concept that implements the recommendations and guidelines of the Robert Koch Institute on hygiene and infection protection. It must always be ensured that the respective regulations do not lead to complete isolation of the persons concerned. In particular, the accompaniment of the birth process and birth and visits that are necessary for legal reasons (especially compelling matters in connection with legal care) or for pastoral care must be made possible in accordance with infection protection. This also applies to the accompaniment of the dying. The Ministry of Labor, Health and Social Affairs may issue separate regulations on further details."

According to this regulation, the hospital must take the necessary measures to impede the entry of coronaviruses. Visits are only permitted on the basis of a facility-specific visitor concept that implements the recommendations and guidelines of the Robert Koch Institute (RKI) on hygiene and infection protection. If the hospital operator decides to permit visits, it also has a corresponding obligation to protect the health of its employees, according to the Cologne Regional Labor Court. For the implementation of the RKI recommendation, there is - in contrast to a specific regulation by the regulatory authorities relating to the hospital - a scope for action which opens up the works council's right of co-determination.

Classification in the further jurisdiction

The decision of the Cologne Regional Labor Court is in line with the case law of the highest courts. Pursuant to Section 87 (1) No. 7 BetrVG, the works council must co-determine in regulations on health protection if the employer is required to make such regulations on the basis of a framework provision under public law and has room for maneuver in shaping them (cf. Federal Labor Court 28 March 2017 - 1 ABR 25/15). However, the Federal Labor Court had also clarified that the co-determination of the works council pursuant to Section 87 (1) No. 7 BetrVG only begins when a concrete risk situation has been established with regard to the risks addressed in the respective framework provision. According to supreme court case law, the aim is therefore to avoid excessive co-determination rights in the area of occupational health and safety. The requirement of an established hazard or a hazard to be established within the framework of a risk assessment applies equally to co-determination in the case of measures pursuant to framework provisions other than Section 3 (1) of the German Occupational Safety and Health Act (e.g., Workplace Ordinance, Ordinance on Safety and Health in the Use of Work Equipment, Ordinance on the Protection of Employees against Risks from Noise and Vibration, etc.). In the case of the Cologne Regional Labor Court, the issue was the Corona Protection Ordinance. This referred to the recommendation and guidelines of the RKI. The RKI recommended (as of December 8, 2020) the following visitor regulation for the clinical area:

• Social contacts should be made via telecommunications rather than face-to-face visits whenever possible. 
• Visits are to be kept to a minimum and limited in time. 
• Visitors must be instructed on the necessary protective measures (distance of at least 1.5 m from the patient, wearing a protective gown and tight-fitting, multi-layered mouth/nose protection, hand disinfection when leaving the patient's room). 

Since the recommendations were minimum standards which the employer and the works council were allowed to exceed in the interest of greater health protection, the Cologne Regional Labor Court considered that the works council had room for maneuver. This argumentation can nevertheless be countered by the fact that exceeding the minimum standards in this respect is likely to serve less to protect employees than to protect patients and visitors. However, there was no right of appeal against the decision.