No comeback for the home office bid obligation

The new SARS-CoV-2 Occupational Health and Safety Regulation

The Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, “BMAS”) has enacted the SARS-CoV-2 Occupational Health and Safety Regulation (SARS-CoV-2-Arbeitsschutzverordnung, “Corona-ArbSchV 2022”) on 9 September 2022. The Corona-ArbSchV 2022 stipulates an expanded operational hygiene concept as the decisive measure, which must specify and implement the necessary - needs-oriented - protective measures for operational infection control on the basis of a risk assessment of occupational health and safety. The ‘comeback’ of the employer’s home office obligation, which was discussed during the preliminary discussions of the Corona-ArbSchV 2022, was not taken into account (anymore) in the final version of the draft.

1. The most important finding: No comeback of the home office bid obligation – and still no subjective right of the employee to a home office activity

The home office provisions of the SARS-CoV-2 Occupational Health and Safety Regulation of 21 January 2021 (“Corona-ArbSchV 2021”), which employers had to comply with from 27 January 2021 to 25 May 2022, served as the starting point for discussions on the comeback of the home office bid obligation. The Corona-ArbSchV 2021 imposed a general home office bid obligation on the employer, which the employer could dismiss only if compelling business-related reasons prevented the individual employee from working from home. The legal scope of this bid obligation was limited from the employer’s perspective, as the employee could not assert a subjective right to home office activity based on the bid obligation, whereas the home office regulation at the time merely obligated the employer to investigate the possibility of home office activity.

A first draft of the Corona ArbSchV 2022 contained a regulation on the employer's home office obligation comparable to the Corona ArbSchV 2021. The inclusion of the regulation was based on the assumption that the employer’s workplace would serve as a special infection site for the spread of the Corona virus during the autumn and winter of 2022/2023. This consideration was eventually dismissed, due mainly to public perception and additional internal discussions about its resilience.

Since the further legislative considerations initiated by the BMAS at the beginning of 2022, among others, on the introduction of a general right to a home office activity have not (yet) been (further) substantiated, employees continue to lack a subjective right to a home office activity.


2. The expanded operational hygiene concept in accordance with the risk assessment under occupational health and safety law... including the consideration of a possible home office activity (and any operational reasons to the contrary)

As a core element of operational infection control measures, the Corona-ArbschV 2022 stipulates - as did the Corona-ArbSchV 2021 - a comprehensive operational hygiene concept, which the employer must develop on the basis of his general risk assessment, and in which the employer must in particular examine the protective measures included in the catalogue of Sec. 2 para. 2 Corona-ArbSchV 2022, specifically (1) maintaining a minimum distance of 1.5 metres between two persons, (2) ensuring hand hygiene, (3) observing cough and sneeze etiquette, (4) ventilating indoor areas in a manner that protects against infection, (5) reducing contacts between persons in the workplace, (6) offering home office work for suitable activities and (7) offering employees a (free) Corona test.

The regulation of the protective measures stipulated in Sec. 2 para. 2 Corona-ArbSchV 2022 includes a catalogue of standard examples; i.e. the employer must comprehensively conduct the risk assessment with regard to the dangers and other risks emanating from the further spread of the Corona virus for his employees at the operational workplace and also stipulate protective measures in his operational hygiene concept in individual cases that are not explicitly included in the catalogue (e.g. the measures of workplace rotation (“Team A/Team B”) already stipulated in practice under the Corona ArbSchV 2021, the provision of appropriate protective clothing).

The examination of a possible home office activity included in the catalogue of standard examples must validate any operational reasons for the contrary. This is not defined more specifically in Sec. 2 Corona ArbSchV 2022. Employers will have to/must be able to systematize the reasons that have already proven fruitful in practice for the home office regulation in Sec. 2 para. 4 of the Corona ArbSchV 2021, according to which operational reasons may result:

  • from the required spatial relationship between the employee's activity and the operational workplace: This case group includes activities that must be performed at the operational workplace. The draught bill provides examples of office activities associated with the processing and distribution of incoming mail; the processing of incoming and outgoing goods as well as counter services for customer and employee contacts that are still required, material expenditure, repair and maintenance activities, caretaker services and emergency services to maintain operations.
  • from the required technical connection of the employee's activity to the operational workplace: This case group includes, in particular, activities that are subject to special requirements of data protection and/or the protection of trade secrets, if these special requirements/protection cannot be complied with in the case of a home office activity, in particular due to technical reasons.
  • from the concrete (other) content-related design of the employee's activity: For instance, if the employee can only perform his activity in interactive presence with relevant other employees of the employer. This includes, for example, management activities performed by employees in their supervisory role, which can only be performed in person.

The standard of review is more generous in favour of the employer compared to the provision of Sec. 2 para. 4 Corona ArbSchV 2021, as a home office activity no longer needs to be considered in the operational hygiene concept when affirming the relevant operational reason, and the balancing of interests with the individual interests of the employee required for the predecessor provision of Sec. 2 para. 4 Corona ArbSchV 2021 (“compelling operational reasons”) is no longer necessary.


3. Voluntary establishment/continuation of a home office offer

Notwithstanding this, employers may continue to allow their employees to work at home, at least in part, as long as this is compatible with their business and HR strategy. In practice, hybrid workplace models with a home office share of up to 40%/60% of regular working hours (“2-/3-day home office”) have become established over the past few months. Employers who offer the (voluntary) home office option for the first time after 1 August 2022 must comply with the new version of the Notification Act (NachwG 2022) regarding the written form requirement, which took effect on 1 August 2022.


4. Outlook: Coming into effect and duration of the Corona ArbSchV 2022

The Corona ArbSchV 2022 goes into effect on 1 October 2022 and will have a term until 7 April 2023.

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