The SARS-CoV-2 Occupational Health and Safety Regulation

Lockdown, quarantine, restrictions on everyday work – the coronavirus crisis is making working from home ubiquitous. This is all the more true now that the German government passed the SARS-CoV-2 Occupational Health and Safety Regulation (Corona-ArbSchV) (the ‘Regulation’) in its cabinet meeting on 20 January 2021. The Regulation is expected to come into force on 27 January 2021 and will initially apply for a limited period until 15 March 2021. The consent of the Bundesrat (upper house) is not required; the Regulation is based on the Federal Ministry of Labour and Social Affairs’ power to issue regulations pursuant to Section 18(3) German Occupational Health and Safety Act (ArbSchG).

Expansion of existing occupational health and safety measures

In view of the continuing high level of infection and the risk of mutations with an even higher potential for infection spreading, the German government believes that additional and temporary occupational health and safety measures are necessary as contributions to the protection of employees’ health. In this respect, the Regulation supplements the SARS-CoV-2 Occupational Health and Safety Standard, the associated SARS-CoV-2 Occupational Health and Safety Rule and the sector-specific action guidelines of accident insurance institutions. It provides for the following requirements for employers (Sections 2 and 3 of the Regulation):

• Employers are obliged to offer employment from home for ‘office work and comparable activities’ unless there are compelling operational reasons to the contrary.

• For employees who cannot work from home, employers must ensure equivalent protection through appropriate measures.

• Company-related gatherings of several persons must be reduced to a minimum and the protection of employees must be ensured by suitable protective measures (ventilation measures, partitions, etc.).

• In companies with more than ten employees, work groups should be as small as possible and work should, if possible, be staggered.

• Employers must provide surgical face masks or FFP2 masks for employees working at the company if requirements for rooms or distance cannot be met for specific reasons.
  
  

Minimum distances, mandatory mask obligation and regular ventilation thus continue to be among the essential protective measures in the workplace, but are now supplemented by more binding requirements for working from home. Employers are required to offer their employees the opportunity to work from home, provided that there are no compelling operational reasons to the contrary. The employer must explain what these reasons are to the competent occupational health and safety authorities upon request. The new regulations on working from home expressly refer only to ‘office work and comparable activities’. Workplaces such as assembly lines or supermarket checkouts are therefore excluded. At the same time, there is no obligation for employees to accept and implement the employer’s offer. Nor is there any provision for any personal right of employees to take action to be permitted to work from home, as is otherwise customary in occupational health and safety law.

Operational reasons to the contrary

Unfortunately, the Regulation does not specify which operational reasons to the contrary can be cited by the employer. One conceivable reason would be the lack of sufficient basic digital equipment (insufficient number of laptops or lack of internet connection in the home workplace). However, employers would be well advised to seek early contact with the competent occupational health and safety authorities if they have doubts about the existence of such reasons in view of their possible obligation to provide evidence.

Contrary to the first, much stricter draft, which provided for regulations on administrative offences and fines as well as extended powers for the occupational health and safety authorities, the Regulation does not contain any specific legal consequences. This is not surprising: according to the German government’s intention, employees should first talk to their employer or, in case of doubt, contact the works council. Only in the event of ‘extreme cases of conflict’ should the competent occupational health and safety authorities be contacted.

Conclusion: Home office obligation light

With the Regulation, the German government has created a ‘home office obligation light’. While employees cannot be forced to work from home and employers are not obliged to allow employees to work from home in every case, a further increase in working from home is to be expected, if only because of the ubiquitous presence of this topic. The Regulation thus has another dimension: employers and employees must reach an agreement on working from home, e.g. by amendment of the employment contract. This raises a number of employment and data protection issues for the employer, as well as co-determination issues, which must be dealt with to ensure that working from home is legally compliant.