Germany: Dynamic requirements for occupational safety and hygiene measures for employers

By Dr. Artur-Konrad Wypych, Julia Gottinger

06-2020

Over the past weeks, the COVID-19 pandemic has imposed burdens on the personal and business life of individuals across the country. For some companies, the outbreak meant that the majority of their employees had to work from home or remotely; whilst other operations had to be completely shut down. In order to facilitate a return to ‘normal’ economic and social life, the Federal Government, together with the heads of government of all German Federal States decided to ease restrictions.

Employers now have to comply with the new SARS-CoV-2 Occupational Safety and Health Standard (released on 16 April 2020 by Hubertus Heil, the Federal Minister of Labour, and Dr. Stefan Hussy, Managing Director of the German Social Accident Insurance (the “Standard”)). The Standard outlines concrete requirements for occupational health and safety during COVID-19.

A high standard of protection against infection at the workplace is a prerequisite for confidence in the effectiveness and scope of the ongoing measures to combat the COVID-19 pandemic while restoring economic activity. Employers have a special responsibility to protect their employees from infections. Unnecessary contact with customers and/or colleagues must be avoided and the risk of infection must be minimized by special hygiene and protective measures. As life slowly returns to a “new” normal, it is necessary to have a well-thought-out hygiene plan which helps to restore smooth and safe operations in the company, whilst avoiding liability risks. This applies regardless of the (non-binding) EU guidelines .

When returning back to normal and resuming usual business operations, employers must keep the following health and safety standards in mind:

  1. Dynamic response options FOR the pandemic


    The occupational health and safety Standard of the Federal Ministry of Labour outlines a series of measures which can be adapted flexibly, depending on the status of the pandemic in the future. The new Standard is intended to provide an additional set of rules to the Federal Safety and Health at Work Act.

    Employers must always check whether the measures taken are appropriate and proportionate. It is recommended that any measures are limited in time in order to allow employers to evaluate the situation and, if necessary, to extend and amend the measures in accordance with the (changing) regulations/recommendations of the government.

  2. Involve OCCUPATIONAL HEALTH & SAFETY experts


    Discussions between the company or its inhouse doctors, the occupational safety specialist, and the occupational safety committee should be started as soon as possible, and the parties should remain in constant communication. Employers might also wish to consider involving workforce representatives. In companies with a works council, the works council may have a right of co-determination in accordance with Sec. 87 Works Constitution Act, dependent on the measures planned.

    A hygiene plan must be drawn up by the company. It should be dynamic and flexible so that it can react to any changes during the course of the pandemic. When applying the measures, the company must ensure that general principles of equal treatment are observed and that individual employees are not disadvantaged. All new measures implemented in response to COVID-19 are purely additional and do not supersede current law.

  3. Home-based office work


    Where possible, employers are still encouraged to allow employees to work from home. Employers have an obligation to assess the risks at the workplace for the safety and health of workers, and to derive and implement appropriate measures following this assessment. This includes the protection of the employee against infections. If the employer cannot provide this protection, employees should continue to work from home.

    However, this does not mean that employees have a general right to work from home during a pandemic (for more details, please see our COVID-19 FAQ located on this page). Alternatives may apply if there is a concrete risk of infection in the employer’s workplace or a corresponding agreement between the employer and its employees.

  4. RETURNING to work


    When, after careful consideration, the employer concludes that some or all the workforce should return to the company, employees must follow instructions set by their employer. The employer must use free room capacities and organise work in  a way that allows multiple occupancies of rooms to be avoided, and sufficient safety distances to be maintained.

  5. MAINTAIN a safe distance


    In public, individuals must maintain a safety distance of at least 1.5 metres to the next person. This safety distance must also be maintained during work, whether that is in buildings, outdoors or in vehicles.

    Employers must determine how compliance with distancing rules can be maintained at work in order to protect their employees adequately. Appropriate barriers (e.g. protective screens) and markings must be installed, or access rules defined. In open-plan offices, for example, workplaces should be set up with the appropriate distance between them. Furthermore, the distancing requirements must be complied with in canteens and break rooms. Employers could consider fixing meal times and, if necessary, fixing places for groups of employees. The distance must also be maintained in lifts and corridors, and where this is not possible, effective alternatives must be found. Employers could, for example, place protective glass in front of cash registers, individual workspaces or production lines.

  6. Avoid personal contact


    Employers must establish an organisational concept/plan that keeps contact between employees to a minimum. Shift models, shift changes, break and attendance times must be organised accordingly. Depending on the sanitary facilities available at the workplace, it may be necessary to restrict the use of these areas to one person at a time. The sanitary facilities should also be equipped with skin-friendly soap, towel dispensers and if possible, skin-friendly disinfectant.

    For employees working in transport or delivery services, the employer must consider whether trips can be carried out by just one employee. If travelling in a team is required, fixed teams of two to three people should be formed in order to reduce mutual contact with other employees.

    Business trips and events requiring physical attendance should be kept to an absolute minimum. Employers are encouraged to provide technical alternatives such as telephone or video conferencing.

    Access by external visitors should also be kept to a minimum. Employers should document their time of arrival and departure, together with their contact details (noting that visitors should be informed of the measures that you take and the protection of their data). Employers should also offer masks and possibilities to wash or disinfect hands.

  7. SICK EMPLOYEES


    Employees with symptoms of illness (e.g. a slight fever, signs of a cold or respiratory symptoms) must stay at home. If an employee develops such symptoms whilst in the workplace, they should leave the workplace immediately until any suspicion regarding the disease has been medically clarified. Employers must instruct all employees to comply strictly with this rule. All employees must check their health status/situation daily before starting work. Employers must also ensure that employees comply with the "sneezing/coughing label", and may place posters around the workplace to encourage employees to follow these rules.

    In certain circumstances, the employer can order that employees measure their temperature before entering the company (for more details, please see our COVID-19 FAQ located on this page). However, as this will be sensitive personal health data, employers need to carefully assess whether this information can bring benefits to the overall safety and health at work concept.

  8. Providing protection TO EMPLOYEES


    If it is not possible (or sufficient) for the employer to fit protective screens in the workplace, nose-mouth covers must be made available to all employees and external customers and service providers.

    In this context, the following questions must be clarified in advance:

    • How long should the provided masks be worn for?
    • In which parts of the the company is it compulsory to wear masks, and in which parts is an "urgent" recommendation enough?
    • How should the masks be worn correctly and how will employees be instructed accordingly?
    • Where will the masks be handed out and how regularly?
    • Where should employees dispose of used masks?
    • How large must the inventory be to ensure that enough masks are always available for employees?

  9. Providing Additional hygiene measures


    Employers must also provide enough disinfectant for workers and customers at the entrance/exit and near the workplaces. The employer may establish that all employees must disinfect their hands when entering the establishment. Where work equipment or workplaces are shared, they should be disinfected after each use. However, the employer should ensure that work equipment is only used on a personal basis, as far as possible.

    Employers should refrain from providing hand dryers and textile towels in the sanitary facilities and common areas, and instead provide disposable paper towels. Soap and disinfectants should also be provided in sufficient quantities. The cleaning intervals of sanitary and common rooms and company vehicles should be adjusted. Employers are recommended to lean premises frequently, especially counters, door handles, tools and other surfaces that people touch often. Good ventilation should also be provided where possible.

  10. Occupational medical precaution and protection of risk groups


    Employers are not obliged to know about any previous illnesses of individual employees, and further, have no right to inspect the medical history of employees. Employees should be given the opportunity to consult a company doctor if they belong to a risk group (e.g. because of their age) or if they feel that they may belong to another risk group. Employers should pay special attention to employees high at risk. It should also be possible for employees to obtain psychological counselling from the company doctor, and employers should not underestimate psychological effects on their employees. If the company doctor recommends special protective measures, the employer must follow on these recommendations. It is recommended that a "risk list" be defined and drawn up.

  11. Ensure company contributions to pandemic preparedness


    Chains of infection that arise in the company must be identified quickly. In order to respond to detected infections in a timely manner, employers are developing operational routines in preparation for pandemics and are cooperating with local health authorities to identify, inform and, if necessary, isolate other potentially infected persons. Employers should establish a permanent contact person in the company, whom employees can turn in case of suspected infection.

  12. Health comes first

  13. As an employer, communicate clearly to your employees that the safety and health of employees is your top priority. Regular updates and active communication with employees are currently essential to building trust in the occupational safety standards within the company. As soon as there is a hygiene plan in place, this must be made available to all employees and all measures must be explained to employees in a way that is understandable to them. We recommend posting notices at various points throughout the company, place posters in the workplace, send e-mails/letters to all employees, and publish the hygiene plan on the intranet.