True to the motto “tested and proven”
On August 31, 2022, the Federal Cabinet adopted new occupational health and safety regulations to deal with the SARS-CoV-2 (Corona-ArbSchV) virus. The revised law gives employers responsibility for implementing the measures. There is no longer any obligation to implement specific measures.
Flu season will soon be upon us. Occupational health and safety measures are necessary to protect workers against the SARS-CoV-2 virus. The Omicron variant has been circulating in Germany since January 2022 but has resulted in proportionally fewer severe illnesses. However, the total number of people with the virus was ten times higher in Sumer 2022 compared to the past two summers. In response to the rate of infection with the Omicron variant, for which those vaccinated have also repeatedly tested positive, and the resulting high levels of illness among the working population, the Federal Ministry of Labor and Business (BMAS) has found it necessary to prepare a draft bill for a new Corona-ArbSchV. The new Corona-ArbSchV will enter into force on October 1, 2022 and will initially apply until April 7, 2023.
On August 24, 2022, the BMAS published a bill for a revised Corona-ArbSchV. It has forced employers to again offer employees the option of working from home and providing rapid tests. However, the version adopted by the Federal Cabinet on August 31, 2022 only requires employees to assess various measures within the framework of the company’s hygiene concept. Unlike previous versions of the Corona-ArbSchV, there is no longer any obligation to implement specific measures.
Measures of the company hygiene concept
The new occupational health and safety measures focus on requiring employers to establish a corporate hygiene concept. This hygiene concept should evaluate well-known and proven infection protection measures and establish and implement the measures that the company deems necessary. In this regard, the employer has no direct obligation to implement the measures. Instead, the employer must assess, on the basis of his own risk assessment in accordance with §§ 5 and 6 of the Occupational Health and Safety Act, whether he should implement certain measures within business as operational requirements permit. In this respect, the employer may take into account the regional occurrence of infection, as well as the specific risks of infection for the activities carried out. According to the bill, the BMAS based the list on measures that have proven to be both practical and effective during the pandemic.
Employers should pay particular attention to the following measures when assessing the company’s hygiene concept:
- Maintain a minimum distance of 1.5 meters between people
- Ensure hand hygiene
- Cough and sneeze etiquette
- Ventilate interior areas in accordance with infection control guidelines
- Reduce contact between people for operational reasons
- Offering employees to perform appropriate activities from home where no operational reason would prevent it
- The offer for workers who cannot work only from home to test themselves regularly and free of charge.
To prevent the spread of infection by droplets, a minimum distance of 1.5 meters between two people must be maintained. When the distance is less than this minimum and the health and safety measures are insufficient, employers must provide employees with protective masks.
Appropriate hand hygiene rules must also be established. According to the explanatory memorandum to the draft law, this will be guaranteed if the employer provides cold water, soap and disposable towels or a suitable hand sanitizer.
Avoiding or at least reducing contact between people in the workplace is the last appropriate measure. Employees should, for example, avoid using the same rooms or vehicles or divide employees into teams as small as possible. Business trips or other in-person meetings should be limited to those necessary for continued operations.
The new version of the Corona-ArbSchV no longer mentions avoiding contact, but simply reducing contact. Employees should, for example, avoid using the same rooms or vehicles or be split into teams that are as small as possible. Business trips or other in-person meetings should be limited to those necessary for continued operations.
No obligation to offer employees to work from home
By adopting the new version of the Corona-ArbSchV, the Federal Cabinet has decided that employers should no longer be obliged to offer employees the possibility of working from home. When evaluating the company’s hygiene concept, the employer simply has to assess whether an offer to work from home should be made to employees and whether such an offer should be implemented within the scope of the hygiene concept. hygiene. According to the BMAS, allowing employees to work from home has proven to be a good way to avoid unnecessary contact with other people at work. Despite this, the Federal Cabinet succumbed to pressure from the FDP and failed to impose a strict obligation to allow employees to work from home. Instead, employers are free to decide whether or not to offer their employees the option of working from home. In doing so, the company must assess whether the tasks performed by the employee can be performed from home or whether operational needs preclude working from home. This will be the case where operations would otherwise be significantly restricted or cannot be maintained. These activities include the processing and distribution of incoming mail, the processing of incoming and outgoing goods, and counter or janitorial services.
When looking at the big picture, the employer should also take into account that working from home can facilitate the reconciliation of private and working life, for example for employees who have additional care responsibilities. to dependents due to the coronavirus. The bill designates caring for a sick child as one of these additional care responsibilities. This specifically relates to circumstances brought about by the coronavirus, such as the needs of employees with disabilities or with health factors that would expose them to a severe case of infection (e.g. weakened immune system).
When the offer to work from home is made, the employee will have no obligation to accept the offer. It will still be necessary for the employee’s home to meet the necessary technical and spatial requirements and for an agreement on homework to be concluded between the employer and the workers. Such an agreement could, for example, be included in an individual employment contract or a company agreement.
Possibility for employees to be vaccinated
According to § 3 of the Corona-ArbSchV, employers must allow their employees to be immunized against the coronavirus during working time. This provision regulates the employer’s support obligations with respect to the provision of necessary personnel, premises, amenities, devices and resources.
Overall, the new version does not contain completely unknown rules. Instead, a weakened variant of the familiar rules will go into effect in October. For most employers, the assessment obligation which will apply from 1 October 2022 will therefore not pose any significant difficulties. Most of the rules will already be implemented within the company, and many have remained unchanged.
In one look
As an employer, what should I take into account from October 1, 2022?