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SARS-CoV-2 Occupational Safety and Health Regulation came into force on August 20, 2020

Requisite occupational health and safety measures to be specified in more detail

A new SARS-CoV-2 Occupational Safety and Health Regulation was drawn up under the coordination of the Federal Institute for Occupational Safety and Health (BAuA). The occupational safety and health regulation specifies the SARS-CoV-2 Occupational Safety and Health Standard published in April 2020 and thus the additional occupational safety measures required during the Corona pandemic. The occupational safety and health regulation came into force after publication in the Joint Ministerial Gazette on August 20, 2020.

The SARS-CoV-2 Occupational Safety and Health Regulation, which has been formally reviewed and approved by the Federal Ministry of Labour and Social Affairs ("BMAS"), came into force on August 20, 2020 and will apply for the period of the Corona pandemic.


Background

On the basis of the German Occupational Safety and Health Act and the ordinances issued for this purpose, the Occupational Safety and Health Regulation (the "Regulation") substantiates the general measures already described in the SARS-CoV-2 Occupational Safety and Health Standard and thus defines the additional occupational safety and health measures required to protect against infection at the workplace during the Corona pandemic.

If the specifics of the Regulation are observed, the employer can assume that he is acting in conformity with the law, whereby any legal provisions of the German federal states for the protection of employees – depending on their form and content, these may have priority – must be observed. For the inspection authorities of the federal states, the Regulation provides a uniform basis for assessing the protective measures in companies. Employers are provided with a set of rules to guide them in ensuring safety and health protection in the company, preventing infections and minimizing their own liability risk.


Content of the Regulation

The Regulation defines its scope of application and contains definitions to facilitate the application of the provisions it contains. In addition, the Regulation makes it clear that existing risk assessments (Gefährdungsbeurteilungen) must be reviewed and, if necessary, adapted, and defines a process for this.

However, the core of the Regulation is in the rules on the applicable (technical, organizational and personal) protective measures. The Regulation is based on the system of the SARS-CoV-2 Occupational Safety and Health Standard published in April 2020 (https://www.bmas.de/DE/Schwerpunkte/Informationen-Corona/Arbeitsschutz/arbeitsschutz.html). With regard to the order of priority of the protective measures, it is made clear that technical measures take precedence over organizational measures and these in turn take precedence over personal measures. The measures are to be properly linked and adapted to the concrete operational situation.

In this respect, the employer must in particular take measures which reduce the number of unprotected contacts between persons (also indirectly via surfaces) and the concentration of airborne viruses in the working environment as far as possible. According to the Regulation, suitable measures for this purpose are in particular the observance of distance rules, working in fixed teams, the separation of breathing areas by technical measures, the use of remote contacts, increased ventilation, the isolation of sick persons, intensified surface cleaning and additional hand hygiene. If distance rules or separations of employees cannot be observed, the employer must provide at least mouth-nose covers, but depending on the risk of infection, if necessary also a utensil with a higher protective effect, for example an FFP mask.

Within the framework of occupational health and safety at times of Corona, employers must, in accordance with the Regulation, give particular thought to the design of the working environment, contact reduction, hygiene and cleaning, and general rules of conduct.

The measures which are further specifically standardized in the Regulation follow the system of the SARS-CoV-2 Occupational Safety and Health Standard of April 2020 and include specifications on workplace design, sanitary facilities, canteens and break rooms, ventilation, home office, business trips and meetings, ensuring sufficient safety distances and the handling of work equipment and tools. Furthermore, the Regulation contains standards concerning the organization of working and break times and the associated drawing up of shift plans and working groups (so-called "equalization of workforce density"), the storage of work clothing and personal protective equipment as well as the access of external persons to the workplace and the company premises. It also provides new instructions for suspected cases and regulations on the consideration of mental stress. Finally, the Regulation contains requirements for the use of mouth-nose covers and personal protective equipment and instructions on the necessary instruction and active communication in the operation.

As the protection against infection for the general public and the company's own occupational health and safety activities overlap during the pandemic, the Regulation also deals with occupational medical prevention in the company. The Regulation contains information on occupational health precautions, evaluating infections among employees, dealing with employees who require special protection, and returning to work after a SARS-CoV-2 infection or COVID-19 illness.

Finally, the appendix to the Regulation contains information on protective measures for special workplaces and workplaces and special company facilities. Specially regulated workplaces and workplaces include construction sites, agricultural and forestry operations, field and delivery services, transport and travel within the company, public transport and accommodation.


Conclusion

It is gratifying that the Regulation provides employers with further details on how to organize occupational health and safety during the Corona pandemic. Employers are well advised to discuss the Regulation with their crisis management team and to adapt the pandemic plan in force in the company or, if such a plan does not yet exist, to draw up such a pandemic plan at the latest at this stage. On the basis of the pandemic plan, it should be possible to demonstrate, particularly at short notice, in the event of any inspections by the Operational Health & Safety Authorities, that the measures standardized in the Regulation are being observed to the full extent.

Please feel free to contact us at any time if you need legal support in evaluating existing pandemic plans, implementing new protective measures at the workplace or other questions relating to occupational health and safety during the Corona pandemic. We at Deloitte Legal are here to assist you with regard to all legal issues and are happy to involve our Deloitte colleagues for all other issues, including with respect to the operational implementation of the new Regulation.

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