On 16 April 2020, the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – BMAS) published concrete uniform safety standards for working during the corona (SARS-CoV-2) pandemic. Below we summarize the practical significance for employers and the main measures taken:
1.Legal nature of the occupational safety standards
The occupational safety standards developed by the BMAS are not directly legally binding. They are rather DIN standards and not legal standards. Nevertheless, the occupational health and safety standards do have legal effects. Incorrect or omitted implementation of the above occupational health and safety standards indicates that the employer has culpably violated his obligation to take the measures necessary to protect the health of the employees (see sec. 3 to 5 of the German Occupational Health and Safety Act (ArbSchG)).
2. Employer in responsibility
Employers are already obliged by their duty of care to minimise the risks of coronavirus infection in the workplace as far as possible. The aim of the BMAS working paper is to create a uniform occupational health and safety standard to interrupt the chain of infection and safeguard the health of employees. Two central points are in the spotlight here:
- If the minimum distance rules of 1.5m cannot be observed, mouth-nose covers must be provided and worn.
- Persons with symptoms – fever and respiratory symptoms – are not allowed to stay on the company premises until medical clarification has been obtained or must leave the premises immediately.
The employer is responsible for implementing the necessary infection protection measures (for the essential measures, please refer to sec. 3) in accordance with the results of the risk assessment.
To this end, the employer should draw up an infection protection concept in cooperation with occupational safety specialists, the company physician and the company employee representatives, which takes up the specifications in the working paper and then implements them.
In addition to liability under the law of obligations towards the injured employees, in individual cases the persons acting on behalf of the employer and the employer’s company (se. 130 Law on misdemeanours (OWiG)) may even be liable under criminal or regulatory law.
It is also to be expected that compliance with occupational health and safety standards will be checked at least randomly by the professional associations.
3.1 Technical measures
The workplace must be designed by special technical measures in such a way that workers can maintain a sufficient distance (at least 1.5 m) from each other. This applies in particular to those areas where gatherings typically form (sanitary rooms, canteens, break rooms, etc.). To avoid such gatherings, distance markings on the floor are recommended, as well as a time-delayed distribution of meals by area. In general, changing contacts both inside and outside the establishment should be reduced to the minimum necessary.
In addition, liquid soap and towel dispensers should be provided in sufficient quantities to prevent infection.
3.2 Organisational measures
Work equipment, such as personal protective equipment and work clothing, should be used in a personalised manner wherever possible and should be cleaned and disinfected regularly. Access by persons not employed by the company should be kept to a minimum as far as possible. In addition, a company pandemic plan should be developed, which provides for rapid clarification of suspected cases. This plan should contain regulations which, in the event of a confirmed infection, provide for immediate investigation and information of employees and contact persons of the infected person.
3.3 Personal measures
If the minimum safety distance cannot be maintained, mouth-nose covers should be provided. In order to implement an effective reduction of the risk of infection in the entire company, it is essential that the measures are organised and enforced by a company-wide body. For this purpose, there should in particular be uniform contact persons and an up-to-date and consistent flow of information.
We will of course keep you informed of further changes in the legal situation.
Dr. Lorenz Mitterer Katharina Schlonsak
Lawyer / Partner Lawyer