Sars-CoV-2 occupational health and safety regulation - right to working from home?

In the fight against the further spread of the Corona virus, the federal government issued the so-called Corona Occupational Health and Safety Ordinance on January 21, 2021, which has come into force on January 27, 2021, and remains effective until March 15, 2021.

Regulatory content

As early as 2020, the German Federal Ministry of Labor and Social Affairs (BMAS) had issued an "occupational health and safety standard" that regulated, among other things, specifications on distances, hygiene, etc. In light of the changes in the incidence of infection, the new ordinance now regulates the following core topics:

• Risk assessments
  Employers must review and revise existing risk assessments to determine if infection control requires further protective measures. (attention: the works council does have an enforceable co-determination right in this regard)
• Contact reduction / multiple use of rooms
  Employers are required to reduce the number of internal contacts between persons to the minimum absolutely necessary; this expressly includes the obligation to avoid the use of rooms by several persons as far as possible. If this is not possible, the minimum area for each person in the room must not be less than 10 m², insofar as the activities to be carried out permit this.
  Similarly, meetings of several people are to be reduced to the minimum absolutely necessary for operations and replaced by the use of information technology. 
  In companies with more than ten employees, the employees are to be divided into the smallest possible work groups and personal contacts are to be reduced to the minimum necessary for the operation. To this end, the employer must, in particular, permit time-shifted working, insofar as this is permitted by the operational circumstances.
  If the activities to be performed do not permit this, the employer shall ensure the equivalent protection of the employees by other suitable protective measures, in particular by ventilation measures and suitable separations between the persons present.
• "entitlement in working from home"
  Also new is the obligation of employers to offer their employees, in the case of office work or comparable activities, to carry out their activities from home if there are no compelling operational reasons to the contrary.
• Mandatory masks and other protective measures
  Where the above specifications cannot be complied with, the employer must ensure the equivalent protection of employees by other suitable protective measures, in particular ventilation measures and suitable separations between the persons present. In addition, the employer must provide medical face masks or FFP2 masks or comparable respirators designated in the appendix if
  • the requirements for room occupancy cannot be met, or
  • the minimum distance of 1.5 meters cannot be maintained, or
  • the activities carried out are likely to result in hazards due to increased aerosol emissions.
    
    Employees must wear the masks to be provided by the employer in accordance with sentence 1.

Sanctions / Right of action

Employees cannot sue for the above-mentioned measures - not even the "right to work from home ". In addition, the offices for occupational safety and health can carry out inspections; however, they cannot impose fines for violating the ordinance. In order to do so, they would first have to issue binding measures by way of an administrative act; only in case of a (repeated) violation of these requirements can the labour protection offices then issue fines. 

Evaluation and implementation in practice

The legislator's requirement to update the risk assessment is more likely to be an appeal to the employer and the works council side (here lurks an enforceable right of co-determination of the works council); agreement on the methodology of a risk assessment and its implementation is unlikely to be possible within the envisaged term of the regulation.

What is unmistakable is the call for all activities that do not have to be performed at the company for compelling operational reasons to be shifted to the "home office." Employers here

• must document which compelling operational reasons stand in the way of working from home.
• In this context, every employer should ask itself - as a control consideration - how this justification would be received if it were reproduced on page 1 of a major German daily newspaper; it can become a serious reputational issue.
• In addition, employers - according to the explanatory memorandum to the law - should work to remove any obstacles to working from home (e.g., lack of technical equipment for employees or lack of connectivity to company servers) in the short term.

So it is not just a mere appeal. At least, however, the legislator clarifies in the explanatory memorandum that employers - for the duration of this ad hoc regulation - are not forced to set up telecommuting workplaces, i.e. to purchase complete office furniture etc. for the employees.

Even with the other regulations - limiting the use of rooms, etc. - the desired results are clearly spelled out and employers will do well here to try their best to avoid multiple uses of rooms.

The regulation itself makes it clear that employees cannot be forced into the „home office“ against their will; moreover, in practice there is another hurdle to be considered for most of the measures mentioned here - works council involvement. Via Section 87 (1) No. 7 BetrVG, the works council has a weighty say in the implementation of most of the measures. This includes, in particular, the distribution of working hours desired by the legislator, which in most cases is likely to contradict existing works council agreements and shift schedules. In fact, employers will hardly be able to reach a settlement here by mid-March 2021 against the will of the works councils. Employers must therefore decide how to deal with any refusal by works councils to approve changes in working hours and spatial transfers:

• Violating the right of co-determination and requesting the employees to make the desired changes would, on the one hand, possibly result in legal action by the works council; moreover, each employee may refuse to comply with this instruction.
• Conversely, the occupational health and safety authorities will hardly be able to (legitimately) accuse the employer of having failed due to the works council's attitude of refusal. However, the employer's efforts to reach an agreement and the works council's attitude must then also be documented.

As a catch-all regulation, on the one hand, the regulation provides for the obligation of the employer to provide the employees with (specific) mouth-nose coverings and, on the other hand, the employees are also obliged to wear the "masks".

We are already seeing that in some companies the regulation has no impact at all because the measures now required by law have long since been implemented. In other companies, however, the fatigue of employees and works councils to put up with home office and other restrictions ("rotating shifts" for work groups) is becoming very apparent. In view of the (for the time being) short time horizon of the regulation's term, the willingness of employers to accept the costs of conciliation board proceedings for this is also dwindling. 

The next exciting questions, e.g. about compulsory vaccination for those working in nursing and the medical sector and the consequences of any refusal to vaccinate (unpaid leave, dismissal) are just around the corner and will keep you and us on our toes.