Employment-law aspects of restarting after lockdown – Part 1

Since last week, public life in Germany has begun to resume. In particular, many shops are allowed to reopen. However, a return to business as usual is not an option yet. Companies have to consider different aspects and complex requirements from various angles and with differing goals when starting up their operations again. First of all, there are, of course, occupational health and safety requirements. Here, the uniform Covid-19 occupational safety standard applies, as presented by the Federal Ministry of Labour and Social Affairs on 16 April 2020. This does not dispense the necessary risk assessment in accordance with the German Occupational Health and Safety Act (ArbSchG), but highlights protective measures which should definitely be examined. State-specific infection regulations, employment bans and quarantine rules must also be observed. As will be shown in Part 2 of this article, the aim is also to avoid liability for infection within companies. In addition, the organisation of working time and remuneration rules must be examined and, if necessary, adapted. State aid received and still needed must not thereby be jeopardised.

Uniform Covid-19 occupational safety standard – the main points

The employer is responsible for implementing the necessary infection control measures in the company, such measures to be based on the outcome of the risk assessment in accordance with the German Occupational Health and Safety Act. A high standard of occupational health and safety which is dynamically adapted to the course of the pandemic remains necessary. As a precautionary measure, operational health and safety and work organisation regulations must set rules for such flexibility. Existing regulations need to be adapted to this in the context of preventive health care. They must take account in particular of the following:

• Safety distances and reduction of employees present in the operation
  
  From the point of view of occupational health and safety, the first objective remains to reduce the number of people in the operation, while maintaining the business activity. The important safety distance of 1.5m can be observed in many companies, but only if there is a corresponding reduction in the number of people present at the same time.
  
  As a result, work that can be done from home should be done there for the time being. This applies regardless of the plans by the Federal Ministry of Labour and Social Affairs to create a legal right to work from home. When restarting operations, it is worth differentiating between groups of people: in the long term, working from home could make sense for the group of people designated by the Robert Koch Institute as particularly at-risk employees, or for those who live in the same household as a person in that category. In addition, this can help employees to fulfil their care obligations (e.g. children or dependants).
  
  If a job cannot be done from home, the uniform standard of occupational health and safety for office workplaces requires that the available space capacity be used and the work organised in such a way as to avoid multiple occupancy of rooms or to put in place adequate protective distances.
  
  The same applies to companies in which working from home or the avoidance of multiple occupancy is not possible at a work organisation level, for example in manufacturing plants. Other measures must therefore be introduced.
  
  When workers gather in social areas, such as canteens and lounges, care must be taken to ensure that an adequate safety distance is observed and queues are avoided. In these areas, it is advisable not to place tables and chairs too close to each other and, for example, to extend the serving times of meals. Queues can be kept apart by floor markings, thus maintaining the safety distance. Queues must also be avoided when workers clock in.

• PPE and hygiene standards
  
  In particular where multiple occupancy or contacts are not avoidable, it is necessary to check which personal protective equipment is available and how strict hygiene standards can be ensured.
  
  Measures similar to those already implemented throughout the food retail sector are recommended: ‘Transparent barriers must be installed in areas open to the public and, if possible, also for the separation of workstations which otherwise would not be a safe distance apart.’
  
  In all of these cases, protective masks should be worn in case of doubt. In the retail sector, public transport, etc., this is already compulsory across virtually the whole country, with small differences in detail. It goes without saying that people with respiratory symptoms or fever should generally not be present in the workplace. It is important, however, to establish a procedure for the clarification of suspected cases where no such action has yet been taken. In doing so, the works council’s co-determination rights must be respected.
  
  In addition to introducing PPE, the equipment must also be carefully stored and cleaned. PPE and other work clothing provided should, if at all possible, be used and stored by only one person. The same applies, where possible, to the use of tools and work equipment.
  
  Where personalised use of work equipment and tools is not possible for reasons of practicability or cost, other protective measures should be introduced. If occupational health and safety does not prevent it, protective gloves can be a good way to reduce the risk of infection in the workplace. If the use of gloves is not permitted for safety reasons (e.g. for rotating parts or saws), the cleaning frequency of the equipment and tools may be increased and sufficient disinfectant can be provided in the workplace. 
  
  In enclosed spaces, ventilation at regular intervals can improve air quality. Regular exchange of air reduces the number of infectious droplets present in the air. 
  
  The planned frequency of cleaning in the company should also be increased in busy areas. This applies in particular to objects which are used more frequently in everyday life, such as doorknobs and sanitary facilities. 
  
  
• Organisation of work
  
  As far as possible, work should be organised in such a way as to avoid contact and ensure that unavoidable contacts involve a low risk of infection.
  
  Meetings and business trips should therefore be postponed or alternatively organised by telephone or video conference. Under the new section 129 German Works Constitution Act (BetrVG), the latter is currently undoubtedly also possible for the work of the works council. In areas where physical contact with colleagues or non-employees, such as customers and suppliers, cannot be avoided, additional measures are needed.
  
  In the event of unavoidable contact between workers, it is advisable to set up fixed smaller working groups to reduce the number of encounters. Contact between colleagues outside the working groups should be avoided. The working groups set up must also comply with the aforementioned measures to achieve a uniform standard of occupational safety. Where possible, the working groups are to be maintained until the virus can be effectively combated by vaccines or medicines. In addition, they must be sensitised by training to observe strict hygiene rules. A sufficient quantity of hygiene products, such as disinfectant and paper towels, should always be maintained in the vicinity of the workplace where possible and reasonable.
  
  Where unavoidable contacts occur with people from outside the company, such contacts should generally be documented. As the holder of the domiciliary right, company owners can also impose codes of conduct, such as wearing masks, etc., on non-company persons.
  
  Compliance with codes of conduct must be ensured by training the staff. In order to achieve a uniform standard of occupational health and safety in the company, it is recommended that the superior or specially appointed contact person provide the same training. People from outside the company are also to be informed of the protective measures in force.
  
  In the context of binding codes of conduct, possible participation rights of the works council must be respected.

State-specific infection control regulations 

Separately from the requirements of the necessary risk assessment, it is imperative that the state-specific infection control rules are observed which allow, prohibit or lay down specific requirements for certain industry sectors. These concern in particular the retail sector, healthcare, nursing care and support facilities, leisure facilities, hotels, restaurants and pubs. The following measures are often envisaged:

• Face coverings for employees and the public 
• Cleaning and hygiene measures 
• Distances between people
• Caps on visitor or customer numbers 
• Access control on the public to avoid queues

In addition to state-specific requirements, additional local regulations in cities and municipalities must be complied with. Businesses are therefore subject to a complex regulatory system.

Employment bans and quarantine rules

When planning work, requirements must also be observed governing the deployment of staff. This applies not only to infected persons, sick persons and their contacts, but also, for example, to returnees from travel abroad. Returnees are obliged to travel immediately after returning either directly to their home or to other suitable accommodation and must not leave their residence for a period of 14 days after their return. They may therefore not work in the company. Special provisions apply to commuters, business travellers and service technicians who have to go abroad or return for a few days, persons working in the transport of goods and passengers and seasonal workers.

Conclusion

Opening up businesses again without an end to the pandemic involves complex challenges for businesses and employees. In addition to important occupational health and safety measures in accordance with the uniform Covid-19 occupational safety standard, different industry-specific infection control requirements from states, cities and municipalities, as well as quarantine rules and travel requirements, must be reconciled with business needs. In addition, other aspects that will be covered in Part 2 of this article are relevant. It is therefore important to develop a structured package of measures upon the restart of operations that contains sufficiently flexible building blocks to respond quickly to new developments.