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COVID-19 - Update: SARS-CoV2 Occupational Safety and Health Regulation

Subsequent to  the Occupational Health and Safety Standard COVID-19 and the SARS-CoV-2 Occupational Safety and Health Regulation - two further regulations concerning the safety and health in the workplace to be taken into account by the employer within the framework of the so-called risk assessment - the Federal Ministry of Labor and Social Affairs (BMAS) recently presented the SARS-CoV2 Occupational Safety and Health Regulation, which has been issued on the legal basis of the authorization of Section 18 (3) of the German Occupational Health and Safety Act (ASiG) in conjunction with Section 5 (1) of the German Infection Protection Act (IfSG). The aim of the regulation is to reduce the risk of infection in the workplace in order to avoid a severe economic shutdown. The current occupational safety and health rules, in particular

  • Observance of the minimum distance of 1.5 m to other persons; wearing of mouth-nose protection where this is not possible, in particular also in canteens and break rooms;
  • Provision of liquid soap and towel dispensers, and
  • regular airing,

still continue to apply. In addition, the regulation, which has come into force on January 27, 2021, and will last until March 15, 2021, essentially stipulates the following:

  • Employers are required to offer home office. Employees should accept the offer if they can.
  • Stricter company occupational safety and health regulations apply for distances and mouth-to-nose protection:
  • If rooms must be used by more than one person at a time, 10 m² must be available per person.
  • In workplaces with 10 or more employees, they must be divided into fixed work groups that are as small as possible.
  • Employers must provide at least medical face masks.

Home Office

The main aim of the ordinance is to reduce contact at the workplace in order to further control the current incidence of infection. The key point here is that, in the case of office work or comparable activities, employers must offer their employees the opportunity to carry out these activities in their homes if there are no compelling operational reasons to the contrary. The employer must accept, acknowledge and document such requests from employees. However, the employees have no enforceable claim - they can only complain to the occupational safety and health authorities or accident insurance institutions, which in turn can demand that the employer provide the information and documentation necessary to carry out their supervisory duties and, in extreme cases, prohibit the work affected by the order. As a result, the ordinance is no more than an appeal to the parties to the employment contract to actually use existing home office options.

For implementation, it is necessary that the spatial and technical requirements in the employee's home are met and that an agreement regarding home office has been reached between the employer and the employee, for example by way of an employment contract provision or a works agreement. The parties to the agreement are free to determine the form of these agreements; in particular, there is no requirement to agree on and set up a teleworkplace in accordance with Section 2 (7) of the Workplace Ordinance (ArbStättV).

Respiratory masks or mouth-nose protection

Employers must provide, at their own expense, medical face masks or FFP2 masks or comparable respirators listed in the appendix to the regulation if

  • the requirements for room occupancy cannot be met, or
  • the minimum distance of 1.5 meters cannot be maintained, or
  • hazards from increased aerosol emissions are likely to be encountered during activities performed.

Employees must wear the masks provided by the employer. Violations of this requirement can be sanctioned by warnings and, if necessary, dismissal for misconduct. Since the masks place special demands on the wearer, it makes sense to provide appropriate (online) instruction.

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