Working During the Pandemic—Current Occupational Safety Regulations in Germany

On August 10, 2020, the German Federal Ministry of Labor and Social Affairs (Bundesministerium für Arbeit und Soziales (BMAS)) published the SARS-CoV-2 Occupational Safety and Health Regulation (SARS-CoV-2 Arbeitsschutzregel). For the duration of the coronavirus pandemic, this regulation, which became effective on August 20, 2020, specifies the requirements for occupational safety to reduce the risk of infection at the workplace. In doing so, BMAS is applying the presumed period of the national epidemic situation according to Section 5 of the Protection Against Infection Act (Infektionsschutzgesetz (IfSG)).

Employers may want to implement this rule, as it concretizes the binding regulations on occupational safety on the basis of the Occupational Safety and Health Act (Arbeitsschutzgesetz). Principally, employers are free to choose the way in which they implement the regulations, but when choosing alternative solutions, they must ensure that they achieve at least an equivalent level of safety and health protection.

The SARS-CoV-2 Occupational Safety and Health Regulation lays down rules on protective measures in a total of 17 separate points. Fourteen points cover general, overarching protective measures; the remaining points are specifically tailored to the areas of construction sites, agriculture and forestry, field and delivery services, transport, public transport, and accommodation. The general safety and health measures address the following topics:

• Workplace design

Workplaces must be arranged in such a way that a distance of at least 1.5 meters can be maintained between employees. If this is not possible for compelling reasons, the employer must provide masks that cover the mouth and nose, and, if necessary, the employer must provide other personal protective equipment (e.g., gloves, disposable aprons, etc.).

• Other areas in the working environment

All other areas in the working environment must be equipped in such a way that distance between employees can be maintained. Easily accessible washing facilities must be provided, even at mobile and remote workplaces. Sanitary rooms must be cleaned at least once every working day.

• Ventilation

The regulation’s occupational safety and health rules require that aeration be increased. The rules also contain standards for the operation of ventilation systems. If the ventilation systems do not contain suitable HEPA filters, they cannot be used in recirculation mode. Fans must only be operated in rooms occupied by only one employee.

• Home offices

Employers may want to ensure, through appropriate work organization, that all employees whose work is suitable for the home office are technically capable of working from home.

• Business travel and meetings

Both business travel and meetings hold a potential for infection. Therefore, the regulation calls for reduced business travel and meetings and, if possible, their replacement by electronic means of communication. The safe distance of 1.5 meters must also be maintained in company vehicles. The employer must provide disinfectants to maintain hand hygiene during business travel.

• Work equipment and tools

The regulation requires the employer to ensure that all work equipment and tools are used by one person only, if possible. If this is not possible, the employer must ensure that the tools and equipment are cleaned before the next person uses them.

• Organization of working time and breaks

Under the regulation’s standards, employers must take account of the general uncertainty, the significant changes in workplaces and processes, and the potential for increased employee psychological strain caused by the pandemic by adjusting working and break times or by taking other appropriate measures to ease the psychological strain, if necessary. Additionally, employers must reduce overcrowding of employees by, for example, moving start and break times. Employers must also review work and shift schedules for compliance with these requirements.

• Nonoperators

The regulation calls for external persons’ access to company premises to be restricted as far as possible. The rules state that contact with external persons should be established in advance via electronic media, if feasible, and that separating measures should be used if access is required.

• Suspected cases

The regulation requires employers to instruct employees on how to handle suspected cases of COVID-19. The standards require that employers make clear to every employee that sick persons (especially those with respiratory symptoms) are not allowed to enter the workplace.

The SARS-CoV-2 Occupational Safety and Health Regulation also stipulates in general terms that employers must review existing risk assessments (Gefährdungsbeurteilungen) with regard to any additional measures needed to protect against infection in the workplace and update and supplement existing measures where necessary. Additionally, occupational medical precautions must be used wherever possible. The rule also includes instructions for dealing with employees who are in need of special protection and for handling employees returning to the workplace after having recovered from COVID-19.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.