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03 June 2020
Workplace safety and infection prevention standards
Testing and health screening
Managing employees working remotely or absent from work
After several weeks of quasi-lockdown in Germany and immense public pressure to lift limitations imposed by the COVID-19 pandemic, an increasing number of companies are starting to resume their activities. For some, this means increasing the number of employees who can come in and work from a company office, rather than from their homes. For others, it means a complete restart of operations. In this situation, employers are faced with myriad legal requirements with which they must comply. Employers must take the right actions at the right times to minimise the risk of potential liability that could result from an improper resumption of business activities.
On 16 April 2020 Federal Minister of Labour and Social Affairs Hubertus Heil, together with Managing Director of the German Statutory Accident Insurance Dr Stefan Hussy, presented a uniform SARS-CoV-2 Occupational Safety and Health Standard (SARS-CoV-2 OSH Standard).(1) This standard provides recommendations for occupational health and safety measures to be adopted during the COVID-19 crisis. It is a useful resource for employers that are in the process of reorganising their work environment and putting rules of conduct in place to best protect their employees against the risks of COVID-19. However, the standard is neither directly binding, nor can it substitute the mandatory risk assessment that employers must perform taking into account the specific situation and circumstances of each workplace.
The special occupational health and safety measures set out in the SARS-CoV-2 OSH Standard and described in more detail below are intended to protect the population by breaking infection chains, safeguarding employees' health and restoring economic activity while continuously flattening the infection curve in the medium to long term.
Working during the pandemic – focus on occupational health and safety
According to the standard, there are two main principles which apply:
Company action plan on temporary additional measures for the purpose of infection protection
Employers must implement necessary infection control measures in accordance with the results of the risk assessment. The implementation of additional infection control measures should be coordinated by the occupational health and safety committee or, absent such a committee, a special coordinating or crisis unit established under the employer's direction. The action plan should provide for the implementation of special technical, organisational and personal measures for the business.
Special technical measures
Special technical measures include measures in connection with:
Where the minimum safety distance of 1.5 metres cannot be maintained, alternative protective measures (eg, the implementation of transparent, physical barriers) should be considered. Working from home concepts should continue to be used, especially if, otherwise, several employees would need to share a company office or work in close physical proximity. Frequently used devices and surfaces should be regularly cleaned and disinfected. Sufficient sanitary and hygiene products must be provided. Ventilation helps to significantly reduce the number of pathogens in the air and therefore will reduce the risk of infection.
Technical measures may need to be planned for building sites, farms, field service staff, delivery services, transport and internal travel within the company. Team setups and the use of vehicles should be structured in such a way that as little interaction as possible occurs between different groups of employees. Teams should be kept as small as possible.
Special attention should be paid to collective accommodation and the risks arising from shared use of bathrooms, kitchens, sleeping and communal rooms, silverware and dishes.
Business trips and personal (ie, face-to-face) meetings should be reduced to the absolute minimum and, to the extent possible, technical alternatives should be made available (eg, telephone or videoconferencing). In case personal meetings are absolutely necessary, the participants must maintain the required safety distance.
Special organisational measures
The special organisational measures include measures in connection with:
The use of means of access (eg, stairs, doors and lifts) must be organised in a way that the maintenance of the safety distance is possible. At places where employees regularly come together (eg, time-recording terminals, canteens, tool and material stores and lifts), the safety distance must be marked out in queuing areas (eg, with adhesive tape). The minimum distance of 1.5 metres must also be maintained between employees in situations where multiple employees work together. Where this cannot be ensured, alternative measures must be taken (eg, wearing mouth and nose coverings).
Tools and working equipment should be used by each employee alone or should be regularly cleaned, especially before being used by others. Depending on the circumstances, the use of protective gloves may be an alternative. The frequency of occupation of work areas and communal facilities must be reduced (eg, by way of shift working schedules or staggered working and break times).
PPE of any kind and work clothing must be individually assigned and not shared by multiple individuals.
The access of external individuals to the business premises must be reduced to a minimum.
Operational measures must be implemented to allow for a rapid investigation of suspected cases of COVID-19. Relevant symptoms of infection with COVID-19 include:
For this purpose, provision could be made for contactless temperature taking and the introduction of health declarations (subject to legal limitations).
Special personal measures
The special personal measures include measures in connection with:
For each of the measures described above, the Federal Institute for Occupational Safety and Health (BAUA) has made available additional guidance describing the measures in more detail and in consideration of specific working environments.(3) In addition, on 30 April 2020 the German Statutory Accident Insurance (DGUV) published a list of sector-specific resources that help employers to identify the appropriate and recommended measures for their industries and businesses.(4)
Employers must be aware of additional (local) legislation on the state, county or municipality level that applies to specific businesses and sectors (eg, the retail business, healthcare and nursing care facilities, childcare centres and schools, recreational facilities, hotels and restaurants).
In accordance with the Safety and Health at Work Act (ArbSchG) and the accident-prevention regulation 'Principles of Prevention' (DGUV Regulation 1), regardless of the size of their business, employers must conduct a risk assessment (Section 5 of the ArbSchG). This obligation is defined in more detail in a number of ordinances that are based on the Safety and Health at Work Act, such as the Workplace Ordinance and the Ordinance on Industrial Safety and Health.
The obligation to conduct a risk assessment is a permanent and ongoing task. It includes the employer's duty to identify and assess hazards for every activity at each workstation and determine measures necessary to improve the level of health and safety. There is a need to regularly verify whether the measures determined for a specific workplace are still suitable to mitigate risks arising from the activities performed. Whenever circumstances change (eg, by implementing new tools, devices or processes), the adequacy of existing risk mitigation measures must be reassessed. If changes are required in response to new hazards, the previously defined risk mitigation measures may need to be adapted. A change in circumstances may also result from external causes, such as the global spread of a disease such as COVID-19. As soon as a new hazard is discovered, employers must investigate the situation and perform a risk assessment. Risk assessments in light of the COVID-19 pandemic should be made a priority and completed (ie, risk mitigation measures should be determined and put in place) before employees return to their workplaces.
The law itself does not define in detail how a risk assessment is to be performed, as this is very much dependent on the circumstances of the specific workstation and activities. However, there are guiding principles that must be observed.(5)
During the COVID-19 pandemic, the standard risk assessment approach must be modified to account for the specific risks resulting from close physical interaction between employees, employees and customers or suppliers and employees with third parties (eg, during their daily commute to work) and the ways in which COVID-19 can be transferred. The exposure must be assessed based on the specific locations where employees meet others, whereby the focus must be on areas that are naturally frequented by a larger number of individuals (eg, sanitary facilities, kitchens, locker and break rooms, meeting rooms, collective accommodation, meeting or waiting areas and vehicles). The assessment also must focus on the tools and devices commonly used by more than one person.
For employers in certain sectors, additional obligations arise from the Ordinance on Biological Agents (BioStoffV), which further increases the standard of diligence that employers must observe when conducting their risk assessment. On 19 February 2020 the Committee on Biological Agents (ABAS), a special department of the BAUA, classified COVID-19 as a biological agent of Risk Category 3.(6) For groups of individuals who may have direct contact with COVID-19 due to their occupation (eg, employees in medical practices or hospitals or during the transport of infected persons or in laboratories), the protective measures must be adapted to the requirements of the BiostoffV and the sector-specific safety regulations in the Technical Rules for Biological Agents (TRBA). TRBA 250 and TRBA 100 regulate measures to protect employees against infections in the healthcare and welfare sectors and in laboratories. The specific actions to be taken in a given situation depend on the infection potential of the pathogen, its transmissibility and the activity to be performed or the resulting exposure. According to current knowledge, COVID-19 can be transmitted through the inhalation of aerosols and through contact with mucous membranes (ie, nose, mouth and eyes). The necessary protective measures can be determined in accordance with TRBA 250 and TRBA 100. Moreover, the 2012 ABAS decision 609 on humane influenzas for which sufficient vaccination is not available, describes additional measures that can be transferred analogously to the handling of other airborne pathogens of Risk Group 3, which also include COVID-19. For diagnostic laboratories, a staged procedure for COVID-19 was defined by the ABAS in its decision of 19 February 2020.
Special care must be taken of protected category employees (eg, pregnant or nursing women, juveniles and employees with disabilities).
The risk assessment is generally supported by the health and safety committee, the appointed occupational health and safety specialist and the occupational physician. All of these functions closely cooperate with the works council.
Employers must document the outcome of their risk assessment and the measures determined (Section 6 of the ArbSchG). In addition, employers must provide sufficient and appropriate training to employees on occupational health and safety during their working hours (Section 12 of the ArbSchG). The training must include instructions and explanations specific to the workplace or the employee's tasks. The training must be adapted to the development of any hazards and repeated regularly if necessary.
With the resumption of business activities and the need to implement more effective infection protection measures, some employers may consider:
The lawfulness of any such measures depends on the specific situation and circumstances.
As far as temperature checks are concerned, taking an employee's temperature on entering business premises (eg, by using contactless thermal scanners) qualifies as the processing of sensitive personal data (ie, health data) under EU and German data protection laws, regardless of whether the results are recorded. The processing of sensitive or health data is strongly restricted. There are very few exceptions, such as if the processing of sensitive data is in the public interest in the area of public health as, for instance, the protection against serious cross-border health threats or to ensure a high-quality and safety standard in the healthcare sector. In any event, a justification requires that the measures are necessary and proportionate. So far, the German data protection authorities of the different federal states have not taken a consistent view as to whether temperature checks are permissible. One of the main concerns is that temperature checks are not even a suitable measure (ie, unnecessary) to identify employees infected by COVID-19. One reason is that it may take up to 14 days (incubation period) until individuals show symptoms. However, employees who have contracted the virus start being contagious before the end of the incubation period, which means that they can spread the virus before the temperature check can discover a fever. In addition, some employees who are infected may not show symptoms and so would not be discovered by temperature checks. Further, an increased body temperature may have various other causes and cannot automatically be linked to a COVID-19 infection.
Despite existing concerns regarding the permissibility of temperature checks, employers should always consider the circumstances of the specific situation. The fact that an employer that implements temperature checks acts in the best interest of the health and safety of its workforce is a major aspect that will need to be taken into account by data protection authorities as well. The likelihood of significant fines is limited in this context. In any event, in order to be proportionate, temperature checks should be only one element of a multifaceted set of measures. Results of temperature checks should not be recorded and should not be shared with third parties. Employees must be adequately informed about the processing of sensitive (health) data. There should be an ongoing review and assessment as to whether temperature checks are still a suitable and necessary measure in response to the COVID-19 risk.
The establishment of a requirement for employees working on company premises to immediately inform their manager or the HR department if they have a confirmed infection or experience COVID-19-like symptoms is generally permissible if intended to allow the employer to take steps to protect other employees. However, employers must be aware that some of the local data protection authorities take a stricter position and have voiced concerns as to the permissibility of requiring employees to report a confirmed infection or COVID-19-like symptoms to their employer. In some regions, additional requirements must be met in order for such a reporting obligation to be permissible.
The permissibility of a requirement for employees to complete a declaration or fill in a self-assessment on their COVID-19 exposure before returning to business premises depends on the exact content of the declaration or self-assessment. Questions about recent contact with persons who have been tested positive for COVID-19 are permissible. On the other hand, questions about contact with persons who have only showed symptoms but have not been tested positive are potentially not suitable to limit the spread of COVID-19 and so are potentially not proportionate. The same applies to enquiries about recent travel activities because, since 10 April 2020, the Robert Koch Institute no longer maintains a list of international high-risk areas or particularly critical regions in Germany, so information about an employee's recent travel destinations no longer has any explanatory power.
Ultimately, employers must decide on a case-by-case basis whether the disclosure of an infected employee's identity to other persons is permissible. If such disclosure is limited to persons who have been in contact with the affected employee, and if the disclosure is necessary to take preventive measures, it is likely permissible. However, if protective measures for other employees can be taken without disclosing the identity, the disclosure of the identity must be avoided.
Employers must be aware that most of the actions that will be taken when preparing for business resumption – to the extent that they affect employees – are subject to consultation with works councils and other employee representative bodies or specialist functions. Health and safety at work measures are subject to works council co-determination in accordance with Section 87(1)(7) of the Works Constitution Act (BetrVG). This applies not only to the implementation of a pandemic plan (as set up by many companies in Germany for the first time a few weeks ago), but also to business resumption plans, including the definition of specific rules of onsite conduct and the technical, organisational and personal measures to be put in place in order to mitigate the infection risk. The definition of rules of conduct for employees during business resumption is typically also subject to works council co-determination in accordance with Section 87(1)(1) of the BetrVG. The implementation or use of electronic tools (eg, thermal scanners) is subject to works council co-determination in accordance with Section 87(1)(6) of the BetrVG. To the extent that the works council refuses consent, the employer would have to initiate conciliation board proceedings and seek approval of the contemplated measures there. Works councils are rather cooperative these days, especially when it comes to reasonable and adequate measures that protect health and safety at work.
Employees working from home and those not working (for different reasons) should be included in communication about the company's efforts to maintain or create a safe working environment and prepare for a return to normal business processes. Employees, especially those who are more susceptible to infections or have members in their family household with pre-existing conditions or otherwise belonging to high-risk groups, may raise concerns for their safety at work. By including these employees in regular communication and keeping them up to date, they will be encouraged to discuss their concerns and develop sufficient comfort that returning to work is safe. In some cases, such discussions will lead to a joint decision to allow an employee to continue working from home. In other cases, employees can be offered more flexible working times (eg, to avoid crowded public transport during typical commute hours) or special protective equipment to take care of their specific needs.
If employees are currently infected, they must stay at home and not return to work until approved by a medical practitioner. Employers should coordinate with the health authorities without delay and seek their guidance as to which measures the company should take to avoid a further spread of the disease to other employees, their families or third parties (eg, customers, suppliers or service providers). If infected, employees are deemed sick and will be entitled to continuation of remuneration by their employer for up to six weeks in accordance with the statutory rules on continuation of pay in the event of sickness. If a health authority imposes an official quarantine order on an employee, they will be entitled to statutory compensation of lost earnings based on the German Infection Protection Act (for up to six weeks). Such statutory compensation must be paid by the employer, which can claim reimbursement.
If employees were in contact with infected persons or start showing symptoms of an infection, their health status should be clarified by a medical practitioner before they can return to work. In the meantime, they should be asked to work from home (if possible) or should otherwise be temporarily released from work.
In some cases, employees continue to be unable to work because of continuous closure of childcare centres and schools. Subject to certain conditions, such employees are entitled to a statutory compensation of lost earnings for up to six weeks and up to a certain amount per month. After expiration of the six weeks, such employees may be able to bridge any remaining period of closure of childcare centres or schools by taking holiday, using existing working time credits previously built up or even building up a negative working time account balance (if permissible).
Despite the euphoria about the expected revival of the economy, at this point, most companies can only guess what the medium and long-term impact of the COVID-19 crisis will be for their businesses. Current short-time work schemes are expected to continue for a few more months, in most cases until the end of 2020. By then, it will hopefully be more predictable how long it will take for business activities to get back to normal. Companies that see no light at the end of the tunnel will soon have to make a tough decision and start looking into potential headcount reductions. Larger lay-offs may be time consuming and costly. In businesses with works councils, consultations can take several months. If agreement on a balance of interests and a social plan cannot be reached, consultations may have to be continued in conciliation board proceedings. On that basis, smaller reductions in force, maybe even in combination with voluntary leaver programmes, may be more efficient for employers and can help to reduce the number of forced redundancies later. Employers should soon look into relevant thresholds and the process that must be followed.
For other companies, the COVID-19 crisis may have caused a significant push for their business, and they may consider hiring. Given that many highly skilled and talented individuals have already lost or will lose their jobs over the course of the crisis, companies planning to hire may want to carefully watch the market and approach the right candidate when the time comes.
Employers should keep up with political and legal developments during these unprecedented times. At this stage, one of the biggest challenges for employers might be to organise their business processes and premises in a way that health and safety risks for employees and third parties are mitigated as much as possible. While there is good and useful guidance available, such guiding principles must be applied to and translated into day-to-day business processes. This is time consuming and, in many cases, will require input and consent from various stakeholders. While business resumption plans are made and measures are implemented, it is important to maintain a regular and effective communication with the workforce. Individual situations must be addressed to take care of potential concerns regarding employees' return to the workplace. Finally, employers need to carefully monitor their headcount and whether it is still in line with how the economy is expected to develop over the next months and years.
For further information on this topic please contact Hagen Köckeritz or Hasine Azim at Mayer Brown by telephone (+49 69 7941 0) or email (firstname.lastname@example.org or email@example.com). The Mayer Brown website can be accessed at www.mayerbrown.com.
(1) In addition to the Federal Ministry of Labour and Social Affairs, the European Agency for Safety and Health at Work has published non-binding but helpful guidelines aiming to help employers and workers stay safe and healthy in a working environment affected by COVID-19, which is available here.
(2) See the Robert Koch Institute's recommendations. The Robert Koch Institute is the government's central scientific institution in the biomedicine field. It is one of the most important bodies for the safeguarding of public health in Germany.
(3) See here.
(4) See here.
(5) For more details, see here.
(6) See here.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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