Corona Protection Ordinance NRW: End of compulsory wearing of masks at the workplace?

As of today, wearing a mask at the workplace indoors can be waived in NRW - under certain conditions. The new federal-state resolutions of 10 August 2021 do not contain any concrete regulations in this regard. NRW was the first federal state to relax the obligation to wear a mask. It remains to be seen whether other federal states will follow suit.

For employers in NRW, the question arises as to how the relaxation of the obligation to wear masks at the workplace can be implemented and what must be observed in terms of occupational health and safety law with regard to the SARS-CoV-2 Occupational Health and Safety Ordinance and SARS-CoV-2 Occupational Health and Safety Rule, which continue to apply nationwide.

End of the obligation to wear masks at the workplace

According to § 3 para. 2 no. 4 CoronaSchVO NRW n.F., as of today, employees may come together in indoor areas at the workplace without masks if:

1. a minimum distance of 1.5 metres is maintained between persons, or
2. only immunised persons, i.e. double-vaccinated and genesis, come together, or
3. if only immunised or tested persons come together at fixed workplaces or in fixed teams, unless the wearing of masks is mandatory for reasons of occupational health and safety (e.g. in the case of activities with high aerosol emissions such as physically heavy work).

The new regulation thus explicitly addresses three different scenarios, whereby the obligation to wear masks can be waived not only for immunised persons, but also if a minimum distance of 1.5 metres is maintained.

No contradiction with SARS-CoV-2 Occupational Health and Safety Regulation or SARS-CoV-2 Occupational Health and Safety Regulation

These regulations do not contradict the SARS-CoV-2 Occupational Health and Safety Regulation (Corona-ArbSchV) of 25 June 2021 of the Federal Ministry of Labour and Social Affairs (BMAS) or the SARS-CoV-2 Occupational Health and Safety Regulation (version of 7 May 2021).

Up to now, the SARS-CoV-2 occupational health and safety regulation has also made it possible to dispense with the obligation to wear masks at the workplace by means of a company hygiene concept if technical and organisational measures are in place, such as maintaining a minimum distance of 1.5 metres. In addition, the SARS-CoV-2 occupational health and safety regulation provides for an explicit possibility of derogation for the federal states. The state of North Rhine-Westphalia has now made use of this by providing clear exemptions from the requirement to wear masks at the workplace.

The Corona-ArbSchV also does not regulate an obligation to wear medical masks at the workplace without exception, so that the exemption regulation of § 3 para. 2 no. 4 CoronaSchVO NRW n.F. does not violate the Corona-ArbSchV.

Query of immunisation status

The CoronaSchVO NRW n.F. does not authorise employers to query the immunisation status of employees, even if this would facilitate implementation. Employers are thus faced with the dilemma of having to rely on the cooperation of their employees when implementing the mask exemption at the workplace: If only immunised employees hold a meeting together in one room, the wearing of a mask may be dispensed with. This requires that each participating employee truthfully informs the other participants about his or her immunisation at the beginning of the meeting. If a participant untruthfully declares to be immunised and takes part in a meeting without a mask, the individual employee (and not the employer) is liable to a fine (§ 6 para. 2 no. 2 CoronaSchVO NRW).

Nevertheless, the employer has its own organisational and supervisory duties based on the Occupational Health and Safety Act, Corona-ArbSchV and the SARS-CoV-2 occupational health and safety regulation that concretises these. If these are disregarded, the acting management can be fined according to § 130 OWiG and the company according to § 30 OWiG. Employers must therefore weigh up whether they can and want to trust that all employees will act truthfully if they communicate sufficiently with their employees. Without any trust and information about immunisation, the exemption regulation of § 3 para. 2 no. 4 CoronaSchVO NRW n.F. could practically not be lived and would be obsolete.

We advise employers to clearly communicate to their employees that the disclosure of their immunisation status before an indoor meeting to an employee in charge of the meeting can be entirely voluntary. Such transparent and clear communication - possibly including an appeal for respectful interaction - should have the advantage of avoiding stigmatisation of non-immunised employees. At the same time, employers can thus create the conditions for dispensing with the mask at the workplace. 

Implementation through a company-wide vaccination register?

However, a company-wide implementation of the mask exemption based on the creation of a central employee immunisation register is probably still not advisable. This is all the more true since a central registration would have to be carried out within the framework of a data processing system and would thus - in addition to currently still existing data protection concerns - in any case trigger the co-determination of the works council pursuant to section 87, paragraph 1, no. 6 of the Works Council Constitution Act (BetrVG). The same applies to a simple recording of the immunisation status in an Excel list. 

Conclusion

Whether the wearing of masks at the workplace can actually be dispensed with must be clarified within the framework of the mandatory company hygiene concept and the risk assessment (if necessary with the involvement of the works council). Employers in North Rhine-Westphalia should at least review their company hygiene concept as of today. With § 3 para. 2 no. 4 CoronaSchVO NRW n.F., NRW has at least temporarily paved the way for an end to the wearing of masks in the workplace.

If you have any questions, please contact Alexandra Groth and Moritz Coché.

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