In agreement with the German Federal Government, the German federal states have now decided to allow companies to resume operations. In order to avoid a renewed spread of the corona virus as far as possible and to protect the employees returning to the companies from infection as best as possible, the German Federal Government decided on April 16, 2020 to introduce uniform standards for protection against infection with the corona virus at the workplace (so-called SARS-CoV-2 occupational safety standards).
The measures follow from the employer’s duty of care (legally regulated e.g. in Sections 618 Para. 1 German Civil Code, 3 German Occupational Safety Act) have to be implemented by the employer in close coordination with the works council, company doctors and occupational safety officers. They can be summarized as follows:
- Basic hygiene measures:
The observance of basic hygiene measures (regular and thorough washing of hands, avoidance of physical contact, observance of a minimum distance of 1.5 to 2.0 m, sneezing and coughing averted to the crook of the arm) is to be encouraged by appropriate notices at a suitable place in the company and personal contact.
- Special technical measures:
- Adaptation of workplace design to prevent infections by means of a graduated procedure => transfer of work activity to the home office; in the event of compulsory presence in the company, avoidance of multiple occupancy of rooms; observance of the distance rules in the event of multiple occupancy and use of protective measures (e.g. face masks, transparent workplace partitions etc.).
- Common rooms (sanitary rooms, canteens or break rooms) => provision of disinfectants and hygiene products; regular cleaning of rooms and disinfection of door handles and handrails of stairs; creating the necessary distance by removing tables and chairs; avoiding queues.
- Regular ventilation (shock ventilation) of all rooms.
- Working and driving away from the company => the distance rules apply here too, i.e. if possible no joint driving; otherwise form small and consistent teams of 2-3 people; equip company vehicles with disinfectants and clean the interior of the vehicle regularly.
- Business trips and meetings to avoid if possible; use of telephone and video conferences strongly recommended for employees; in the case of urgent personal appointments, the distance rules to be observed.
- Special organizational measures: The employer should also take measures to reduce the risk of infection in the organization of daily work processes, which are by nature subject to a certain routine. These include ensuring sufficient protective distances and regulations on the use of stairs and lifts as well as the personal allocation and use of work equipment and clothing. The access of external persons be kept to a minimum and employees belonging to a risk group (older than 60 years or those with previous illnesses) should be given special protection.
- In case of suspicion, the employer should arrange for a contactless fever measurement, send the employee home and identify possible contact persons.
- Pregnant women: Activities or working conditions in which a pregnant woman comes or can come into contact with persons infected with SARS-CoV-2 or with a well-founded suspicion of infection may constitute an irresponsible risk within the meaning of Section 11 (2) of the Maternity Protection Act (MuSchG). For this reason, measures must be taken as part of the risk assessment to prevent an irresponsible endangerment of the pregnant woman:
- Tight-fitting respiratory protection masks protect the wearer from possible infection, but are only of limited suitability for pregnant women because of the breathing resistance during the period of wear.
- The employer must therefore first check whether he can move the pregnant woman to another suitable workplace without risk, especially the home office.
- If it is not possible to find a suitable workplace without risk, the employer must as the ultima ratio issue an operational employment ban in accordance with Section 13 of the German Act on the Protection of Mothers (“MuSchG”).
- At this point, reference must be made to any liability for damages on the part of the employer if the pregnant woman or child suffers damage as a result of inadequate protective measures.
The measures of the Federal Government outlined above serve not only to protect employees from infection with COVID-19, but also to ensure the continued existence of the company. An infection in the company must be reported and, in the worst case, can lead to a renewed closure of the business with serious economic consequences for the company.
Brödermann Jahn is a business law firm which provides full service to national and international business clients with a focus on cross-border work (such as advice in trade and company law, IT, data protection, M&A, labor, comparative legal structuring, international litigation and arbitration).