Occupational health and safety requirements as well as the presence of first and evacuation aiders in times of the Corona pandemic.

Activities in the home office – sec. 28b para. 4 Infection Protection Act

Since the beginning of the Corona pandemic, home office employment has become increasingly common, so many employees rarely work from their employers' office space. In addition, by end of last year, an obligation was stipulated in the Infection Protection Act (Infektionsschutzgesetz, IfSG) for employers to offer their employees – provided there are no compelling operational reasons to the contrary – the opportunity to perform office activities in the home office. Although this obligation is time-limited until March 19, 2022, it is expected that even when this requirement expires, a great number of employees will continue to work in the home office. It has also already been announced by the government that renewed measures in the fall/winter of 2022 would still not seem to be excluded, even if there are less incisive Corona measures for the spring/summer of 2022 due to falling infection numbers.

Legal requirements of the Occupational Health and Safety Act

In the context of the work of employees in the home office, employers must not only consider a variety of organizational aspects, but also considering legal provisions of occupational health and safety.

With regard to occupational health and safety, a further regulation, sec. 3 para. 1 sent. 1 of the German Occupational Health and Safety Act (Arbeitsschutzgesetz, ArbSchG), stipulates the essential duties of employers that also apply to the home office. According to this, employers have a preventive duty to take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work. As the primary norm addressee of the ArbSchG, employers are also responsible for the comprehensive safety and health of employees in this regard.

Since it is not possible to determine "necessary measures" on the pure wording of the Act, and since employers must be aware of the risk potential of the employees' activities to assess necessary measures, it is essential to carry out a risk assessment in accordance with sec. 5 ArbSchG. Consequently, sec. 3 para. 1 sent. 1 ArbSchG and sec. 5 ArbSchG are systematically related. The activity of employees in the home office, however, presents employers with the difficulty that the monitoring as well as the enforcement of the requirements of occupational health and safety is regularly highly limited. Particularly in view of the constitutionally guaranteed protection of an employee's residence in Art. 13 of the German Fundamental Law (Grundgesetz, GG), it is challenging for employers that – without a corresponding contractual agreement – they have no right of access to an employee's residence. If there is no possibility of access, a risk assessment of the home office workplace could be carried out, if necessary, with a detailed interview with the employee.

However, a one-time risk assessment (e.g. in the form of a questionnaire) is generally not sufficient. If employment circumstances change, – as, for example, by the current Corona pandemic – employers must conduct a new risk assessment and review the effectiveness of the original measures and adjust them if necessary. In practice, regular questionnaires should therefore also be carried out once the underlying conditions have changed (e.g. due to relocation, school closures, kindergarten closures, etc.).

In this context, employers are also obliged to provide their employees with sufficient and appropriate instruction on safety and health protection during the working hours, sec. 12 para. 1 ArbSchG. The risk assessment carried out must also be used as the basis for the instruction in this context.

However, employers do not have to fulfill the obligation to instruct themselves. In this respect, they can delegate the duty to company doctors or occupational safety specialists, for example. According to sec. 3 para. 1 no. 4 and sec. 6 no. 4 of the German Occupational Physicians, Safety Engineers and Other Specialists for Occupational Safety Act (Gesetz über Betriebsärzte, Sicherheitsingenieure und andere Fachkräfte für Arbeitssicherheit, ASiG), they are also responsible for informing employees about accident and safety risks.

Even if a failure to provide adequate instruction in accordance with sec. 12 ArbSchG is not directly subject to fines, there is a risk that any injuries caused by employees will be claimed for compensation or that employers will be taken into recourse by the accident insurance institution.

Measures for first aid, firefighting and evacuation

During this pandemic situation, with regard to occupational health and safety, there is also the question of the extent to which it is necessary to comply with legal requirements regarding the presence of first and evacuation aiders at the operating site.

According to the provisions of the ArbSchG, employers are obliged to implement the measures required for first aid, firefighting and evacuation of employees in accordance with the circumstances of the workplace, the activities and the number of employees, sec. 10 para. 1 sent. 1 ArbSchG. Sec. 10 para. 2 ArbSchG stipulates the obligation to designate those employees who are responsible for first aid, firefighting and evacuation. The ArbSchG does not, however, provide any details with regard to the composition of first and evacuation aiders in companies.

Requirement of the presence of first aiders in the company

In this regard, detailed regulations on the mandatory presence of first aiders in a company can be found in the accident prevention law, whereby the regulations of the German Social Accident Insurance (Deutsche Gesetzliche Unfallversicherung, DGUV) are decisive.

The number of first aiders required, which is stipulated in sec. 26 DGUV Regulation 1 "Principles of Prevention", depends mainly on the number of employees present in the company. In larger companies (with more than 20 present employees), a quota of up to 10% may have to be fulfilled by the presence of qualified first aiders.

Even though it is beneficial for companies that, according to the statutory regulation, the number of employees (or insured persons) actually present rather than the number of employees employed in the company is decisive for the quota, this poses organizational challenges for companies. Present employees are those employees who are present at the workplace during regular company hours. Since the required number of first aiders in the company must be guaranteed all times, sufficient consideration must be given in particular to the absence of first aiders due to home office, illness or vacation.

Requirement of the presence of evacuation aiders in a company

In contrast to first aiders, there are no equivalent legal requirements for evacuation aiders. Even if the legal requirements for fire protection assistants (5% of employees) can be referred to as a first indication, this quota should not be adopted without further ado. Rather, it is also advisable to determine the number of evacuation aiders required by means of a risk assessment within the meaning of sec. 5 ArbSchG in the company, in which, among other things, the actual risks of the company, the spatial conditions and the number of employees restricted in their movement are to be taken into account.

Even if it is not expressly stipulated that the required number of evacuation aiders must be ensured in the company at all times, the risk of possible liability on the part of the companies should be minimized.

Requirements with regard to the Corona pandemic

The requirements for the presence of first and evacuation aiders should not be underestimated. Even under normal circumstances, in which there is usually more constancy in terms of the number of employees present in the company, an operational organization is required to ensure that sufficient first and evacuation aiders are present.

The current Corona pandemic poses challenges for employers in this regard, as there is often insufficient knowledge about how many employees are present in the company and on which days. In addition, it is not apparent that any exemptions currently apply regarding the respective minimum number of first and evacuation aiders to be present.

To avoid any liability risks, employers should ensure – irrespective of the current circumstances – that first aid can be provided immediately at all times. If the required number of first and evacuation aiders to be present cannot be guaranteed due to the current situation, employers should come as close as possible to the required number, also taking into account the risk assessment.

In an instruction guide for companies, the DGUV recommends that, if necessary, companies enter into cooperative arrangements with other companies located in the immediate vicinity of each other during the Corona pandemic in order to ensure first aid. Another challenge during the current pandemic situation is the selection of first aiders. To avoid any risks to first aiders themselves, the risk groups of the Robert Koch Institute's risk profile must be considered.

Violations of the ArbSchG – Non-appearance of first and/or evacuation aiders

The legal requirements of the ArbSchG should be sufficiently taken into account, as both fine and criminal penalty provisions are stipulated in the ArbSchG itself, sec. 25, 26 ArbSchG. In addition, it is also possible that if there has been a breach of duty of care due to the disregard of occupational health and safety regulations, which has resulted in damage to the health (or even death) of an employee, the employer will have become liable for this under the provisions of the Criminal Code (Strafgesetzbuch, StGB). Within the scope of this, a criminal offense – due to the employer's obligations stipulated in sec. 3 ArbSchG – may also be fulfilled by an omission.

The obligations arising from the ArbSchG are primarily addressed to employers, but it is questionable how a refuse by employees to take on tasks that serve occupational health and safety is to be classified.

The ArbSchG does not constitute any obligation under public law with regard to employees to take on first aid, firefighting or evacuation tasks. In particular, such an obligation to take on the aforementioned activities cannot be derived either from sec. 10 ArbSchG or from the duty to provide support pursuant to sec. 16 para. 2 sent. 1 ArbSchG.

However, according to the predominant legal opinion, employers may assign such tasks and duties to employees within the company on the basis of their instruction right (otherwise in particular by agreement in the employment contract). Even if the consent of the respective employee is not required, we recommend seeking it. If such an assignment of duties has been made, any violations (such as failure to appear at the premise despite being registered in an emergency plan) could be sanctioned under labor law, for example by a warning or even a termination for conduct-related reasons. A more detailed assessment would always have to be made considering the circumstances of the individual case.

For the sake of completeness, it should be noted that a different assessment is to be made within the framework of accident prevention law (DGUV Regulation 1). In this regard, sec. 28 para. 1 DGUV Regulation 1 stipulates an obligation under public law for suitable employees to take on the task of first aiders.

Conclusion

The flexibility granted to employees in the Corona pandemic in terms of being able to perform their activities in the home office poses challenges for companies in terms of occupational health and safety law. Also in the current situation, companies must coordinate to ensure that the required number of first and evacuation aiders are trained and present.

The occupation of employees in the home office has experienced a strong increase due to the Corona pandemic. At present – especially in view of the political discussions on the introduction of a permanent right to home office employment – this matter is not expected to subside again in the near future. It can also be discussed in this context whether the function as a first or evacuation aider is a compelling operational reason justifying the rejection of the claim even if there is a general right to work in the home office. In this respect, it is even more important for companies to be properly positioned with regard to occupational health and safety issues and, in particular, emergency precautions, and to ensure that they are organized accordingly.

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