Please note that the legal situation with regard to the Corona pandemic is subject to constant change. Therefore the following information only reflects the above-mentioned status. Thus it is urgently advisable to check the information for any changes in the legal situation.
The topic of occupational health and safety takes on even greater significance during the coronavirus pandemic. The "SARS-CoV-2 Occupational Health and Safety Standard" published by the German Federal Ministry of Labour and Social Affairs (BMAS) contains a number of pandemic-specific protective measures that employers must follow. In addition, the German SARS-CoV-2 Occupational Health and Safety Regulation ("Corona-ArbSchV") has been in force since 27 January 2021. It imposes further requirements on employers.
However, employers cannot limit themselves to implementing only the protective measures listed in the Occupational Health and Safety Standard and Occupational Health and Safety Regulation, because there are a large number of requirements in the respective coronavirus protection regulations of the German federal states that employers must keep in mind to protect their employees from COVID-19. Some of the requirements differ from one federal state to the next.
We describe which actions employers must pursue:
Content
- Federal state-specific infection protection regulations
- Prohibitions on engaging in work and quarantine regulations (e.g. persons returning from abroad)
- Conducting a risk assessment
- Aligning the measures with the operational conditions
- Observing sequence of measures
- Determinative: state of technology, occupational medicine and hygiene
- Measures of the SARS-CoV-2 Occupational Health and Safety Standard and the German SARS-CoV-2 Occupational Health and Safety Regulation or state-specific regulations
- Industry-related specifications of the trade associations
- Documentation
- Provision of instructions to the employees
I. Federal state-specific infection protection regulations
The German federal states have introduced various regulations which continue to allow or prohibit business operations for certain industrial sectors and impose specific requirements on the business operations. In particular, the retail, health, nursing and care institutions, recreational facilities as well as hotels and restaurants are affected thereby. For business operations, these regulations require, for example:
- access control to avoid queues
- distancing
- upper limits for the number of visitors
- cleaning and hygiene measures
- (medical) mouth-nose covers for employees and the public
In addition, there are also local regulations in cities and municipalities which must be complied with.
We can provide you with advice on which of these regulations apply to your business and must be complied with.
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II. Prohibitions on engaging in work and quarantine regulations (e.g. persons returning from abroad)
Even if business operations as such are permitted, employers and workers are subject to regulations which govern the work of an individual. They relate to persons returning from travel abroad as well as to infected persons, ill persons and contact persons.
As an employer you should clarify how you can engage which persons in work. Your CMS contact partner can help you with this also.
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III. Conducting a risk assessment
The Employer is obligated to safeguard and improve the safety and health protection of workers at work through measures of occupational safety and health (section 1 (1) German Occupational Safety and Health Act (ArbSchG)). He must take the necessary measures having regard to the circumstances which affect the health of the workers at work. The work does not have to be fully free of risk. A risk must, however, be avoided as far as possible and the remaining risk kept as low as possible (section 4 German Occupational Safety and Health Act). Protective measures must be aligned to the operational circumstances. A prerequisite for each measure is therefore the risk assessment pursuant to section 5 German Occupational Safety and Health Act, which is specified in certain occupational safety and health regulations (German Workplace Ordinance (ArbStättV), German Industrial Safety Regulation (BetrSichV), among others). Through the risk assessment, the operational circumstances are examined with respect to risks in order to then derive the appropriate measures for the respective business, the work and the employees. Is there a threat of an infection and illness under the specific work circumstances? What measures are possible for protection?
With respect to the risk to the employees from coronavirus, employers must make an assessment of numerous aspects. The following overview is not exhaustive, but shows the scope of the aspects to be examined:
Workplace
- Can distances be kept in work areas, on access routes (corridors, stairs, lifts), in sanitary facilities, common rooms and cafeterias?
- Who moves around the building and are there visitors?
- What cleaning measures are necessary, what cleaning intervals must be maintained and what cleaning agents are used?
- Does the ventilation lead to a risk of infection?
- In which areas of work must working from home be offered? What coronavirus risks are there for employees working from home?
- What risks are there for employee accommodation?
Work structure/work processes
- How are the workplace and the work tasks structured? Is there a risk of infection for employees during their work? What work processes are there?
- standard processes/activities in the office, in manufacturing and in sales premises
- on construction sites, in the agricultural sector
- in external sales work, delivery services, transportation trips or other trips of individual or several employees?
- Is there joint work or group work? Do employees work without protection or too close to each other?
- What applies in the case of the startup of machines and systems?
- Is there customer contact through visiting or receiving customers?
- Are there meetings? Where and when do they take place? Who participates? What are the spatial conditions?
- What risks are there on business trips (in Germany, abroad)?
- Is there collaboration with employees from external companies and if so, what does this involve?
Work equipment/protective equipment
- Does work equipment lead to a risk of infection (e.g. spray mist)? Is there a further risk of infection in connection with protective equipment?
- Who uses it and how is it allocated to the employees?
- Are there risks of infection from using it?
- How is cleaning or replacement and disposal carried out?
Working hours
- Do the working hours and extensions pose a risk? E.g. through frequency of contact on the way to work or on the way home, access controls, time stamp clocks?
- Which risks are there during breaks and through simultaneous breaks?
- Can employees maintain their rest times when working staggered hours?
- Does the introduction of necessary Sunday and public holiday work, as is now allowed in some cases, lead to further risks for the employees?
Mental stress
- Also and especially under the constant danger of infection, there is a risk of health hazards due to psychological stress. The employees' fear of being infected undoubtedly plays just as big a role as the concern they have about family members, their own job or the future.
Infections/illnesses of employees
- Employers must also address the risks which arise through employees who have been infected with coronavirus or have become ill with COVID-19.
Risk groups
- There are also particular risks for employees with pre-existing conditions or older employees who face greater impairment in the event of infection and illness.
- Pregnant and breast-feeding employees also belong to the high-risk group, for whom there may be further risks - be it through an infection itself, or through restructured work processes.
- Can the measures taken also be implemented for disabled persons, e.g. people with restricted mobility?
Information and provision of instructions
- Do working and behavioural instructions and hygiene regulations available and are they comprehensible?
- Are the employees given instructions in such a way that they are aware of the identified risks and the protective measures taken against them?
The occupational health and safety specialist and the company doctors provide support with the risk assessment.
We also provide you with advice on which of these types of regulations apply to your business and must be complied with, since employers must take into account that a works council has a co-determination right pursuant to section 87 (1) no. 7 German Works Constitution Act (BetrVG) in the structuring of the risk assessment.
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IV. Aligning the measures with the operational conditions
Firstly, measures must be aligned with the operational circumstances. What is possible or makes sense at one workplace in sales premises, an office or a factory building may be insufficient at another workplace.
1. Observing sequence of measures
For all his measures, the employer must follow the sequence defined in section 4 German Occupational Safety and Health Act:
- Can the risk be generally avoided? For many activities, this would probably only be possible if no work is performed at all or performed only in strict isolation. Remaining risks must be kept as low as possible. Therefore, further protective measures are necessary if the risk cannot be fully prevented.
- In principle, the employer must initially consider technical protective measures (partition walls, etc.).
- If technical measures are not sufficient, or not possible or practicable, organisational measures (work in shifts, use of space, work from home etc.) must be checked.
- The new section 28 b para. 7 German Infection Protection Act (IfSchG) regulates a special condition for office work and similar activities: Employers must offer employees the opportunity to carry out such activities at home, unless there are compelling operational reasons not to do so. Employees have the obli-gation to accept this offer, provided there are no reasons to the contrary on their part. However, the regulation does not provide for a corresponding right of employees to work from home. Employees therefore cannot assert a claim to work from home in court.
- For employees who cannot work from home, "equivalent protection" must be provided in the workplace according to the SARS-CoV-2 Occupational Health and Safety Regulation. Individual offices should satisfy this requirement. If several employees work in the same room, each person must have at least ten square metres to themselves. If this is not possible, the employer must arrange for suitable protective measures such as ventilation or partitions between the persons present.
- If these protective measures cannot be implemented either, or if the minimum distance of 1.5 metres cannot be maintained at work, medical protective masks or FFP2 masks must be worn at the workplace, which the employer must provide. The same applies if the activities carried out are considered to be a hazard due to increased aerosol exchange.
- Personal measures (protective masks, suits, etc.) are secondary to all other measures because they affect the employee the most.
2. Determinative: state of technology, occupational medicine and hygiene
Protective measures must correspond to the respective state of technology, occupational medicine and hygiene as well as other established occupational science findings (section 4 German Occupational Safety and Health Act).
Research on COVID-19 is dynamic, findings and recommendations e.g. of the Robert-Koch-Institute are evolving constantly. It is therefore not sufficient to rely on measures that have already been implemented. Employers must keep themselves updated and adjust their measures.
The occupational health and safety specialist and the company doctors provide support in determining the measures.
Employers must also take into account here that the works council has a co-determination right pursuant to section 87 (1) no. 7 German Works Constitution Act in relation to protective measures. We can provide you with advice in this connection.
3. Measures of the SARS-CoV-2 Occupational Health and Safety Standard and the German SARS-CoV-2 Occupational Health and Safety Regulation or state-specific regulations
The "SARS-CoV-2 Occupational Health and Safety Standard" and the German SARS-CoV-2 Occupational Health and Safety Regulation contain a number of protective measures which should be checked because they can provide appropriate protection.
In addition, the trade associations have published industry-related specifications.
However, it is not enough to implement the recommended measures of the occupational health and safety standard and regulation without taking into account the coronavirus regulation of the respective federal state or the operational conditions.
The following measures are currently in place:
Workplace structure
- Minimum distances
- Separations in the case of being open to the public
- Separations of workplaces from each other
- Office work is to be performed from home, unless there are compelling opera-tional reasons not to do so.
- Use of available room capacity
- Reorganisation of work to avoid high occupancy of rooms or to ensure sufficient distancing.
- Obligation to wear a cloth face mask or medical face mask/FFP2 mask. The SARS-CoV-2 Occupational Health and Safety Regulation provides for masks whenever distances or room occupancy cannot be maintained, or if the activity is likely to pose a hazard due to increased aerosol emissions. In accordance with this, medical masks (surgical masks) are required as a minimum. In some federal states, the coronavirus regulation also stipulates that mouth-nose covers must be worn in the workplace – exceptions apply only if a safe distance from other people can be maintained
- Company-related gatherings of several people, e.g. team meetings, but also agreements between supervisor and employee or queries to colleagues, are to be reduced to the minimum necessary for the company and, where possible, replaced by the use of information technology. Rapid tests are also recommended locally here.
Obligation to test for employers
- All employees who do not work exclusively from home must be offered two Corona tests per week.
- Employees who basically work from home are also entitled to a test - but only when they come into the office.
- It is up to the companies to decide whether to provide their employees with a self-test for self-administration or whether trained personnel should perform a throat-nose swab. PCR tests are also conceivable.
- However, employees are not required to test.
- It is up to the companies to bear the costs of the tests.
- There are no documentation requirements for employers. Only the evidence of the procurement of the tests must be kept for four weeks.
Sanitary facilities, cafeterias, common rooms
- Cleaning possibilities
- Cleaning and hygiene specifications, adjusted cleaning intervals
- Cleaning of door handles and handrails
- Distancing in common rooms and cafeterias, e.g. through tables and chairs not being too close to each other and the avoidance of queues for the serving of meals and the returning of dishes as well as at the cash register.
- Extension of the cafeteria and meal serving times
- If appropriate, closing of cafeterias, although then other meal possibilities for the employees must be considered.
- Please note: Since 11 January 2021, company cafeterias must be closed wherever work procedures permit.
Ventilation
- Regular ventilation
- Operating of room air ventilation systems
Infection protection measures for construction sites, agriculture, external sales work and delivery services, transport and journeys within the company
- Here also: minimum distances
- Isolated working
- As far as possible small fixed teams (e.g. 2 to 3 people)
- Installations for frequent hand hygiene near the workplaces
- Equipping company cars with utensils for hand hygiene, disinfection, paper towels and rubbish bags
- Avoidance of simultaneous use of vehicles by several employees
- Allocation of vehicle
- Regular cleaning of the interior
- Reduction of journeys to procure material or for deliveries
- Optimisation of the planning of journeys, also having regard to sanitary installations (toilets, washrooms and hand hygiene)
- Mouth-nose cover in company cars if more than one person is travelling in the vehicle and the minimum distance cannot be maintained
Infection protection measures for group accommodation
- Establishing as far as possible small fixed teams that also work together.
- Avoiding use on a shift basis and necessary cleaning between uses
- Individual occupancy of sleeping rooms
- Additional rooms for early isolation of infected persons
- Regular and frequent ventilation and cleaning
- Kitchens with dishwashers
- Washing machines or regular laundry service
Working from home
- Obligation to offer work from home if there are no compelling operational reasons – see IV.1. above.
Business trips and meetings
- Reduction of business trips and events with personal attendance and meetings
- Here also: minimum distances for the participants; where appropriate, obligation to wear medical face masks/FFP2 masks – see IV.1. above
- Use of phone or video conferences as an alternative
Ensuring sufficient protective distances
- Adjustment of how access routes (stairs, doors, lifts, among others) can be used with sufficient distance
- Marking of protective distances for gatherings of people (for the recording of working hours, cafeteria, tool and material distribution, lifts, etc.)
- Protective distancing where several employees work together, e.g. assembly/installation work
- Alternative wearing of medical face masks/FFP2 masks
Work equipment/tools
- Person-specific tools and work equipment
- Regular cleaning in particular prior to handover to other persons
- Use of tools with suitable protective gloves (taking account of any limits on how long they should be worn and allergies)
Structuring of working hours and breaks
- Spreading of working hours in order to reduce the level of occupancy of work areas and jointly used facilities.
- Reduction of personal contacts within the company in connection with shift planning
- Avoidance of close gathering of several employees (e.g. when recording working hours, in changing rooms, washrooms and showers, etc.)
- Encouraging employees to take precautions even during breaks
Storing and cleaning of work clothing and personal protective equipment (PPE)
- Person-specific use of PPE and work clothing
- Person-specific storage separate from normal clothes
- Regular cleaning
- Putting on and taking off work clothing at home
Access to workplaces and company premises by persons external to the company
- Restriction of access by persons external to the company
- Documentation of the contact details of persons external to the company as well as time of entry to/departure from the workplace/the company premises
- Provision of information to persons external to the company about protective measures
- Special conditions - depending on the state coronavirus regulation - apply to care homes and old people's homes. The catalogue of measures includes mandatory rapid testing, the obligation to wear FFP2 masks and strict distancing rules.
Instructions for action in the event of suspected cases
- Company rules for clarifying suspected cases
- Non-contact temperature measurement in the event of signs of an infection (in particular fever, coughing and shortness of breath)
- In professions in the health sector, carry out COVID-19 test if necessary
- Request employees with relevant symptoms to leave the company premises or stay at home
- In the event of confirmed infections, company pandemic plan to identify and inform those persons (employees, customers) who are also at risk of infection through contact with the infected person.
Mental stress
- Taking account of mental stress in the risk assessment
Medical face mask/FFP2 mask and personal protective equipment (PPE)
- Medical face mask/FFP2 mask in particularly hazardous work areas and in the case of unavoidable contact with other persons or protective distances which cannot be maintained
Provision of instructions and active communication
- Communication regarding the prevention and occupational health and safety measures introduced in the company
- Provision of instructions
- Contact persons consisently the same
- Explanation of protective measures
- Comprehensible information references (signs, notices, floor markings, etc.)
- Information on compliance with hygiene rules (distancing requirement, "cough and sneeze etiquette", hand hygiene, PPE)
Preventive occupational health care and protection of persons particularly at risk
- Preventive occupational health care for employees with pre-existing conditions or individual disposition.
- Recommendations for change of work
- Preventive occupational health care by phone
4. Industry-related specifications of the trade associations
The trade associations have now published further specifications and recommended measures for various work situations for different industries. Unfortunately, the pages and information for the most part differ in their structures.
Further information can be found here:
Overview page of the German Social Accident Insurance association
The umbrella association German Social Accident Insurance (GSAI) has published an overview with links to the individual special pages of the trade associations and public accident insurance funds as well as of the Social Insurance for Agriculture, Forestry and Horticulture on its homepage:
Overview page of the GSAI
Special pages of the individual trade associations
The trade associations have published the following special coronavirus pages with further information:
Administration Trade Association (ATA)
Trade Association for the Construction Industry (TACON)
Trade Association Energy Textiles Electrical Media Products (TAETEM)
Trade Association Wood and Metal (TAWM)
Trade Association Food and Restaurants (TFR)
Trade Association Raw Materials and Chemical Industry (TARCI)
Trade Association Transport Industry Postal Logistics Telecommunication (TA Transport)
Trade Association for Health Services and Welfare Work (THW)
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V. Documentation
Employers must document the result of the risk assessment and the measures taken (section 6 German Occupational Safety and Health Act). If the measures have been reviewed as to their effectiveness, the result must also be documented. No particular form is prescribed. The documentation can also made electronically. It should, however, be easily available with the possibility of providing it to the public supervisory officer.
VI. Provision of instructions to the employees
The employer must give instructions to the employees, meaning providing them with directions and explanations that are geared to the workplace or the area of responsibility. The instructions must be provided before the employees start working. Since a certain form is not prescribed, it is advisable to inform the employees of the new behavioural guidelines before they return from lockdown, e.g. by email, and to go into more detail once they have returned to the workplace. Since the instructions must be adjusted to the risk development, it must be (regularly) repeated if there are new or changed protective measures.
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More FAQs about the effects of Coronavirus on German employment law
For the latest information about COVID-19, please visit our Corona Center. If you have any questions about dealing with the current situation and its impact on your company, our CMS Response Team will be happy to help.
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