German law provides for occupational health and safety obligations of the employer. The Occupational Health and Safety Act (Arbeitsschutzgesetz) in particular imposes the obligation to carry out a risk assessment of the workplace and to implement the necessary protective measures. As a result, the employer must ensure that the risks of illness and health hazards due to the corona virus in the company remain as low as possible. In response to the spread of the coronavirus, the Federal Institute for Occupational Safety and Health (BAuA) has published on its website implementation aids for protective measures in the form of a catalogue of measures for activities in the office environment. It is therefore recommended that companies follow such recommendations as part of their risk analysis and the definition of concrete protective measures and consider the BAuA's proposals. Depending on how businesses react and adjust to the Covid-19 crisis there is significant scope for civil claims and threat of claims. We identify below some key categories and risks of claims from employees and customers or business partners arising from breaches of the above restrictions and regulatory requirements.
Claims by staff relating to unsafe working conditions
- Employees and other staff of a company may, under certain conditions, be entitled to contractual claims for damages against the employer in the event of infectious diseases. In the event of an infection with Covid-19, the employer is generally liable for the causal damage, provided that he has intentionally or negligently breached his duties. According to the civil law provisions of the German Civil Code (Bürgerliches Gesetzbuch) and the German Occupational Safety and Health Act (Arbeitsschutzgesetz), the employer is obliged to take appropriate measures to protect the life and health of employees. The employer has a duty of care towards the employees, which also includes the duty to protect the employees' legal interests, such as life, health, personal rights and property. With regard to the manner and scope of the protective measures to be taken, the measures proposed by BAuA may be used as standard. If an employer violates his obligations intentionally or negligently he is liable. In addition, the employer can also be held liable for the fault of vicarious agents he engages to fulfil his occupational safety obligations. The claim for compensation basically covers the entire incurred damage caused by the breach. However, it remains to be seen in individual cases whether the causality of the damage could be denied because the corona infection could be seen as the realisation of the general life risk. It is also conceivable that contributory negligence from the employee might exclude or mitigate his claim for compensation.
- The employer's liability for personal injury suffered by the employee at work is largely excluded by the regulations of the statutory accident insurance (Sozialgesetzbuch VII). However, the umbrella organisation of the commercial trade associations and accident insurance funds "Deutsche Gesetzliche Unfallversicherung" (DGUV) is of the opinion that it is not liable for an infection with SARS-CoV-2, as the virus is now classified as a pandemic and thus as a general danger. If the opinion were to stand up in court, which, after a cursory examination, there is some evidence for, the limitation of liability under regulations of the statutory accident insurance would not apply and the employer could also be held liable by his employees for infections caused by negligence.
Claims connected to the transmission of Covid-19 are likely to raise complex questions of causation. For each case of Covid-19, there could be numerous potential infection sources. By making prudent adjustments to the workplace and encouraging social distancing, employers can not only reduce the risk for their employees, but also make it more difficult to prove that transmission occurred at the place of employment, increasing the causation challenge should an unfounded claim be filed.
Claims by members of the public
On the part of other third parties from the public, individual liability claims are also conceivable. However, the requirements for such claims are much higher. Since there are no contractual relationships with other members of the public, such individual claimants would have to present and prove all the requirements for a tortious liability claim. In particular, they would therefore have to prove that their legal interests, life or health, were causally infringed by unlawful and culpable conduct or omission on the part of the company. If the tortious claim is proven, the entire causal personal injury can also be claimed on this basis.