Corona Resolutions of October 28, 2020 and their operational implementation
Since the beginning of the COVID-19 pandemic, occupational safety, mobile work and short-time work have been at the focus of employer/employee relationships. The current pandemic events and the Corona Resolutions of October 28, 2020 require a review of measures already taken.
The COVID-19 virus and the legislative and regulatory measures taken to contain the pandemic are having a significant impact on working life. Since March of this year, the focus has been on occupational safety, mobile work and short-time work. The relevance of these topics will increase again due to the current pandemic and in view of the resolutions passed by the German Federal and State Governments on October 28, 2020. This applies in particular to the planned duration of the proposed additional restrictions, the so-called "lockdown light" from November 2 to 30, 2020, but certainly also beyond that date.
In the following, we provide an overview of the above-mentioned topics:
- General occupational health and safety
According to Section 13 of the resolutions of the German Federal and State Governments of October 28, 2020, "every company in Germany must implement a hygiene concept based on an adapted risk assessment and company pandemic planning and adapt it again in view of the increased number of infections. Among other things, the aim is to avoid unnecessary contacts within the workforce and with customers, to implement general hygiene measures and to minimize the risk of infection in the event of necessary contacts by means of special hygiene and protective measures."
An obligation to implement a pandemic concept already arises from the SARS-CoV-2 occupational health and safety standard published on April 16, 2020 (see article), which was concretized by the SARS-CoV-2 occupational health and safety rule that came into force on August 20, 2020 (see article). An obligation to continuously review the effectiveness of occupational health and safety measures also results from Section 3 (1) ArbSchG.
Employers are thus called upon to carefully re-examine and, if necessary, adjust existing pandemic plans and document the fulfillment of these obligations. Companies that have not yet drawn up a (sufficient) pandemic plan are required to draw up such a pandemic plan at the latest at this stage.
When reviewing, revising and/or drawing up pandemic plans, the industry-specific guidelines and specifications of the relevant accident insurance institutions, employers' associations, occupational health and safety authorities, etc. should also be taken into account.
Based on the pandemic plan, it should be possible to demonstrate at short notice, in the event of any audits by the occupational health and safety authorities, that the measures specified in the occupational health and safety standard, the occupational health and safety rule and any other relevant regulations have been and are being fully observed.
It can also be assumed that the occupational health and safety authorities will carry out audits and inspections, since Section 13 of the resolutions of October 28, 2020 states that the authorities responsible for occupational health and safety as well as the accident insurance institutions will and should advise the companies, but also carry out inspections.
- Mobile work
According to Section 13 of the resolutions of October 28, 2020, "the Federal Government and the Federal States [...] urge companies to make homeworking or mobile working at home possible again now, wherever feasible, in view of the high infection rates".
This obligation of employers already results from Section 6 of the SARS-CoV-2 occupational health and safety standard, according to which "office work should be carried out in/from the home office wherever possible, especially if office space has to be used by several people with insufficient safety distances."
Section 4.2.4 of the SARS-CoV-2 occupational health and safety regulation clarifies: "The ArbSchG and the Working Hours Act also apply to work in the home office. Regulations on working hours and availability should be made. Employees are to be instructed with regard to working hours to be observed, work breaks, the necessary documentation, ergonomic workplace design and the use of work equipment, for example correct screen position, separate keyboard and mouse if possible, correct and changing sitting posture and breaks in movement“.
Again, industry-specific or regional peculiarities may have to be taken into account. For example, the Hessian Corona Contact and Operating Restrictions Ordinance in the version valid from November 2, 2020 states: "For all suitable work processes and services, the enabling of home work, in particular by setting up home office workplaces and other forms of mobile working, is urgently recommended."
As far as can be realized operationally, employers should thus (continue to) enable mobile work. Since a law for the organization of mobile working is not to be expected in the near future (see article), employers should first of all consider the above-mentioned measures and in particular create necessary precautions with regard to IT and data security (see article).
- Business Trips
According to Section 4 of the resolutions of October 28, 2020, citizens are urged to generally refrain from "unnecessary private travel". In addition, overnight accommodation in Germany will only be provided for "necessary and expressly non-tourist purposes". This means that business trips will continue to be permitted in principle.
However, Section 7 of the SARS-CoV-2 occupational health and safety standard already states that "business trips and face-to-face meetings such as meetings should be reduced to the absolute minimum and, as far as possible, technical alternatives such as telephone or video conferences should be made available as an alternative". Further concretization can be found in section 4.2.5 of the SARS-CoV-2 occupational health and safety regulation.
Against this background, business trips should (continue to) be avoided or postponed unless necessary.
- Short-time work
According to Sections 5 to 9 of the resolutions of October 28, 2020, companies in the leisure, events, catering and personal hygiene services sectors and also companies in the wholesale and retail sectors will be forced to close or restrict their operations in November (and possibly beyond).
Furthermore, it cannot be ruled out that the "lockdown light" will also have an impact on other industries. This will in turn lead to many companies being forced to introduce short-time work (see article).
As early as March 13, 2020, the German Bundestag passed a law to temporarily improve the regulations for short-time work compensation in response to the crisis, which will facilitate access to short-time work (see article). With the Federal Government's Social Protection Package II of April 22, 2020, further measures were adopted to mitigate the economic consequences for those affected by short-time working (see article).
The above-mentioned relief applies until December 31, 2020, but is to be extended until December 31, 2021, with the reimbursement of social security contributions during short-time work being gradually adjusted back to the "pre-corona level" (see article).
- Additional support measures
Although this article is focused primarily on the possible employment law implications of the resolutions of the German Federal and State Governments, it should be noted that further support measures for businesses (particularly) affected by the new restrictions have also been promised, namely in the form of a one-off lump-sum payment.
According to the statements of the Federal Ministry of Economics, companies, businesses, self-employed persons, associations and institutions that are prohibited from continuing their business by state order or that are already prohibited by existing orders should in particular be entitled to apply. Support measures for indirectly affected businesses are to be clarified in due course.
The economic aid is to be paid out as a so-called one-off lump sum. The aim is to provide simple and non-bureaucratic assistance to those affected.
According to the Federal Ministry of Economics, the so-called one-off lump-sum cost allowance is "particularly concerned with the fixed costs incurred despite the temporary closure". In order to keep the procedure as simple as possible, "these costs should be approximated on the basis of turnover". According to the Federal Ministry of Economics, the reference point should be the average weekly revenue in November 2019. Companies founded after November 2019 should not be left out either – here a comparison with the revenues of October 2020 is used. Solo self-employed persons are to have the option of using the average revenue of the previous year in 2019 as a reference framework for revenue. The reimbursement for companies with up to 50 employees is to amount to 75 percent of the corresponding turnover. The corresponding percentages for larger companies are to be determined in accordance with the upper limits specified in the relevant EU state aid regulations. It is planned to offset the extraordinary economic assistance granted against any state benefits already received for the period, such as short-time work compensation or bridging allowances (Überbrückungshilfe), or against any benefits that may be granted later from the bridging allowance.
As of October 30, 2020, the Federal Ministry of Economics and Technology commented on the further implementation as follows: "The Federal Government is working at full speed to make the application for and efficient processing of the aid feasible as quickly as possible. Therefore, the possibility of an advance payment is also being examined. It should be possible to submit applications via the nationwide IT platform for bridging assistance (www.ueberbrueckungshilfe-unternehmen.de). In this way, an infrastructure will be used that has proven its worth in recent months".
As can be seen from the above, numerous detailed questions are still open and further developments must be followed closely.
Please feel free to contact us at any time if you need support for the evaluation of existing pandemic plans, the operational implementation of new protective measures or other questions relating to occupational safety and health during the Corona pandemic and/or if you require assistance with respect to subsidies and government support measures.
We will be happy to support you with regard to all relevant legal issues and, together with our Deloitte colleagues from other sectors, also in the operational implementation of the relevant requirements and/or the application process.
Likewise, we – and our colleagues at Deloitte – will continue to stand by your side in the introduction and handling of short-time work or, where unavoidable, in the planning, implementation and realization of restructuring measures, and finally dealing with all other legal issues arising from business practice.
Notwendige Arbeitsschutzmaßnahmen werden weiter konkretisiert