Overview of the novelties of the current SARS-CoV-2 Occupational Health and Safety Regulation

Against the background of the current pandemic situation, meanwhile decreasing incidence figures and the spread of the delta variant, the Federal Government has revised the contents of the SARS-CoV-2 Occupational Health and Safety Regulation:

No more obligation to offer home office

The SARS-CoV-2 Occupational Health and Safety Regulation previously provided that in the case of office work or comparable activities, employers must offer employees the opportunity to carry out these activities from their home offices if there are no compelling operational reasons.

This obligation has now lapsed, so that the employer can in principle again demand that employees work from the workplace. It should be noted, however, that the obligation to offer home office may nevertheless also result from an existing works council agreement or an individual agreement with the employee. Similarly, the offer to work from home can still be part of occupational health and safety measures to reduce personal contact in the workplace.

Risk assessment and company hygiene concept

In order to minimize the risk of infection with the coronavirus, especially if personal contact in the company increases due to the discontinuation of home office arrangements, the "new" SARS-CoV-2 Occupational Health and Safety Regulation places even more emphasis on risk assessment and the company hygiene concept.

Employers must therefore continue to review and update the risk assessment against the background of the infection event and implement the necessary measures in a hygiene concept. In this context, the SARS-CoV-2 Occupational Health and Safety Regulation must be observed, which, in comparison to the SARS-CoV-2 Occupational Health and Safety Ordinance, contains more detailed regulations on occupational health and safety. The sector-specific guidelines of the accident insurance institutions can also be used for orientation.

Reduction of contacts in the workplace

The SARS-CoV-2 Occupational Health and Safety Regulation explicitly points out that the number of personal contacts within the workplace must be reduced to the minimum necessary for the company. The SARS-CoV-2 Occupational Health and Safety Regulation does not make any more precise specifications. In particular, the binding requirement of a minimum area of 10 square meters per person in rooms with multiple occupancy is omitted.

Provision of medical protective masks

If the risk assessment shows that neither technical nor organisational protective measures (e.g. frequent intensive ventilation or the installation of partitions) are sufficient to protect employees and it is therefore necessary for employees to wear medical protective masks, the employer must provide them.

Offering of COVID-19 tests

The employer must continue to offer employees complimentary COVID-19 tests at least twice per calendar week.

However, this only applies to employees who do not work exclusively in their home offices. Furthermore, the employer can ensure an equivalent protection of the employees through other suitable protective measures or prove an existing equivalent protection. In this case, the obligation to provide COVID-19 tests to the employees resp. an employee does not apply. This refers, inter alia, to constellations in which the purpose of the test is not applicable, e.g. in the case of vaccinated persons.

Effective date of the new Regulation

The SARS-CoV-2 Occupational Health and Safety Regulation applies since July 1, 2021. It will expire, depending on which day comes first and unless the Ordinance is not extended before then, either on the day of the repeal of the epidemic situation of national importance by the German Bundestag or at the latest at the end of September 10, 2021.

Conclusion

The new regulations of the SARS-CoV-2 Occupational Health and Safety Regulation grants the employer more flexibility, e.g. with regard to home office and the elimination of the rigid 10-square-meters-per-person requirement. With regard to risk assessment and measures to minimize the risk of infection, however, there are only a few changes.

It is therefore recommended that employers continue to apply existing and functioning Corona occupational health and safety concepts essentially unchanged and review them with regard to the (few) possibilities for flexibilisation described above.