The new Corona Occupational Health and Safety Ordinance

The new SARS-CoV-2 Occupational Health and Safety Ordinance, the CoronaArbSchV, specifies several additional precautionary measures that employers must take into account at the workplace in the future. The aim is not only the reduction of contacts at the workplace, but also the avoidance of contact in public transport on the way to work.

The employer must offer home work

The CoronaArbSchV provides for regulations to reduce contacts at work. Of particular relevance is the employer's obligation, set out in Sec. 2 para. 4 of the CoronaArbSchV, to offer employees remote/home work. This obligation applies where employees perform office work or other comparable activities and the employer cannot assert any compelling operational reasons that force them to work on site. The ordinance does not list examples of what these compelling operational reasons are. However, since the legislator does not rely solely on "operational reasons", but these must also be „compelling", the threshold for justification by the employer is rather high. It must under all conceivable operational and organizational circumstances be impossible for the work to be performed elsewhere. The employer has the burden of explanation and proof.
Whether an employee accepts the employer's offer to work from home is the employee's decision. Under the Ordinance, employees are not forced to work from home.

Further measures to reduce contact at work

In order to protect employees who cannot be offered home office/remote work for operational reasons, even stricter rules on reducing contacts at work have been adopted.

• Company-related meetings of several persons must, if possible, be replaced by information technology-based tools or reduced to an operationally necessary minimum. If meetings of several persons are necessary, the employer must ensure that a comparably high level of protection against infection exists for the employees. This shall be achieved in particular by measures such as ventilation or suitable partitions between the persons present. 
• For open-space offices or other rooms that have to be used by several employees at the same time, a new minimum area of 10 square meters for each person in the room applies and must be observed. In rooms or for activities where this minimum area cannot be maintained, a comparably high level of protection against infection must be ensured (e.g. through ventilation or partitions). 
• In companies with more than 10 employees, the employees should be divided into small and fixes teams. There should be only as much contact between the individual teams as absolutely necessary. The contact reduction shall also be realized by working at different times.

Medical masks in case of unavoidable contact

A novelty is that, pursuant to the CoronaArbSchV, the employer must provide medical face masks. This always applies if home work cannot be offered, the above-mentioned measures to reduce contact cannot be observed in the workplace, the minimum distance of 1.5 meters cannot be maintained or if the activity carried out is likely to involve dangers due to increased aerosol emissions. The employees must then wear these masks. The masks do not necessarily have to meet the FFP2 standard; medical masks or masks comparable to them, which are listed in an Annex to the Ordinance, are sufficient as well. Special attention must be paid to the fact that a mask may be worn for a maximum of one work shift and must be changed if it becomes soaked.

Extension of the risk assessment

At short notice, employers must review the risk assessment according to Sec. 5 and 6 ArbSchG with regard to "additional and necessary measures" of workplace infection control and document this assessment. It can be assumed that compliance with this obligation will be checked by the occupational health and safety authorities.

Assessment and prospects

The CoronaArbSchV is initially to apply for a limited period until 15 March 2021. The Ordinance contains less comprehensive obligations for employers than initially announced and expected. For example, the obligation for weekly testing with Corona rapid tests in companies with more than 50 employees, which had been an issue of much debate -has been omitted. Nevertheless, the ordinance presents the employers with considerable operational challenges. On the other hand, it ensures that the employer's duty of care and protection is concretized, thus eliminating ambiguities for employers. It is to be hoped that the CoronaArbSchV will provide employers with further assistance in ensuring effective protection of employees.

Finally, it is to be expected that the competent occupational health and safety authorities will monitor compliance with the regulations of the CoronaArbSchV and, in the event of violations, issue orders or impose fines. It is therefore important that employers know their obligations and take the necessary (additional) measures.