For as long as the threat of infection from COVID-19 remains, businesses will have to maintain a safe and healthy workplace to an increased degree. In order to clarify and sort out the large number of recommendations, the German government has updated the SARS-CoV-2 Occupational Health and Safety Standard for employers from April 2020 of which we had highlighted the key points here. It has also updated the SARS-CoV-2- Occupational Health and Safety Rule which serves as concretization of the Health and Safety Standard.
The Health and Safety Rule was jointly prepared by the occupational health and safety committees at the Federal Ministry of Labor and Social Affairs under the coordination of the Federal Institute for Occupational Safety and Health (AuA). The purpose of the detailed Health and Safety Rule is to provide employers with a "state of the art".
The goal is to protect the health of all employees during the pandemic, improve population protection by interrupting chains of infection, reduce risks of infection in the workplace and prevent new infections.
In particular, businesses will have to review the possible risks to employees and others and reassess their practices already implemented by the most businesses. Employers shall take measures to reduce the number of unprotected contacts between persons (also indirect contact via surfaces) as well as the concentration of viruses in the working environment as far as possible. Suitable measures for this purpose include, for example, adherence to the social distancing rule, working in fixed teams, separating zones by technical measures, increased ventilation, isolation of sick persons, intensified surface cleaning and additional hand hygiene.
Here are the key points of the Occupational Health and Safety Rule:
Every workplace and work organization is different. There is no one for all rule. Therefore, the employer's duty to conduct a risk assessment and to identify the individual hazards in the workplace will play a crucial role in the infection protection. This duty does not only arise from the Health and Safety Rule but from the Occupational Health and Safety Act.
Employers are required to take the appropriate measures based on the outcome of the risk assessment. The risk assessment should be carried out together with company physicians and occupational safety specialists. In addition, employers must instruct their employees on infection protection measures in the workplace.
Employers must select their measures in a reasonable way and always keep in mind that technical measures have priority over organizational measures and these in turn have priority over personal measures which should always be the last means.
While the Occupational Health and Safety Rule of the Government is not binding but merely recommendatory, compliance with it is strongly recommended. If employers implement the technical, organizational and personal measures proposed, they can assume that they are acting in a legally secure manner.
Please feel free to reach out to our Employment Team in Germany or your usual contact at Orrick to find out more or if you need any help.