Update: Corona Occupational Health and Safety and how to handle the home office

On 1 July 2021 an amendment to the SARS-CoV-2 Occupational Health and Safety Ordinance [SARS-CoV-2-Arbeitsschutzverordnung] came into force, which allows more freedom whilst still containing clear requirements. With the end of the obligation to work from the home office, companies face the increasing risk that employees will establish a permanent individual claim to home office work if they continue to work from home. Our partner Jörn Kuhn has compiled an overview of the current framework conditions under occupational health and safety law and of home office situations.

Home office obligation expires with the nationwide emergency brake

As of today (1 July 2021), companies are no longer obliged to offer their employees work in the home office. The statutory home-office obligation was part of the German Infection Protection Act [Infektionsschutzgesetz - IfSG], better known as the nationwide emergency brake, and expired at the end of June. The federal government had already announced at the end of May that it would not be extending the nationwide emergency brake. The provision of Section 28b (7) IfSG, according to which companies must offer home offices, therefore no longer applies.

Corona Occupational Health and Safety Ordinance is being extended and adapted

The SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV) has been extended up to and including 10 September 2021 (here). The previous regulations have been adapted to the low level of infection, while basic occupational health and safety regulations continue to apply:

• The new Ordinance focuses on risk assessment and the company hygiene concept as "complementary components of company infection control". According to § 2 (1) Corona-ArbSchV, companies must continuously review and update their risk assessment within the meaning of § 5 ArbSchG with regard to additional necessary measures, and on this basis define and implement a hygiene concept. The SARS-CoV-2 occupational health and safety regulations and the sector-specific practical aids of the accident insurance institutions are to continue to apply during implementation.
• Companies are still obliged to offer the possibility of rapid tests or self-tests at least twice a week for all employees at their companies (§ 4 Corona-ArbSchV). This excludes employees who have been fully vaccinated and those who have recovered from COVID-19.

Please note, however: according to the explanatory memorandum to the Ordinance, this still does not give rise to a right to information. In future, too, employees will generally not be obliged to take up the offer of testing or to provide the company with information about their vaccination or recovery status.

• Likewise, companies will also be obliged in future to provide their employees with (at least) medical face masks in accordance with § 2 (2) Corona-ArbSchV. Employees must wear the masks provided by the company or at least equivalent masks. This applies in particular to physically strenuous activities and activities in which loud speaking is required due to noisy ambient conditions and where potentially virus-contaminated aerosols are therefore increasingly excreted. An exception exists only if employees are already sufficiently protected through technical and organisational protective measures (e.g. low room occupancy, distance regulation, erection of partition walls).
• According to the new Corona-ArbSchV, the mandatory requirement of a minimum area of 10 m² per person in rooms with multiple occupancy and the division into the smallest possible work groups is also being dropped in future. Nevertheless, work-related contacts and the simultaneous use of rooms by several persons must be reduced to a necessary minimum (§ 3 Corona-ArbSchV).
• Likewise, protection against infection must also be guaranteed in future during break times and in break areas, § 2 (1) Corona-ArbSchV.

The amendments came into force on 1 July 2021.

SARS-CoV-2 occupational health and safety rules remain in place

The Bundestag decided on 11 June 2021 that the epidemic situation of national importance within the meaning of § 5 IfSG continues to exist for another three months, thus until 30 September 2021. Consequently, the SARS-CoV-2 occupational health and safety regulations continue to apply for this period (SARS-CoV-2 occupational health and safety regulations (baua.de)). In addition to the Corona-ArbSchV, the SARS-CoV-2 occupational health and safety regulations are also an important instrument for combating the pandemic.

Home office - avoiding risks

In many companies, employees have been in home offices for more than a year. In other companies, home office work was only implemented with the obligation to offer home office work. The common denominator in most companies is that home office work was implemented without a separate regulation in the employment contract or under collective bargaining law.

If employees simply continue to work in the home office now that the statutory home office obligation has ended, companies run the risk that an individual claim to home office work may arise. Such an individual claim can be derived from company practice or from an overall commitment by the company. There is thus a risk that employees can demand the performance of their work from home in the future. The individual claim can only be removed by means of a dismissal pending a change of contract, which entails high legal hurdles.

Companies find themselves in different situations. For those companies that have already clearly defined their future forms of work, communicated them and formed them into regulations, there is no need for action. Companies that are currently still in the phase of finding or evaluating future forms of work should, as a minimum, practice clear communication, to ensure there is no permanent toleration of home office. The same is true for companies seeking a permanent return to the office.

Conclusion

The new Corona-ArbSchV enables companies to react flexibly to the declining incidence of infections. Over the next few weeks, it will therefore be important for companies to continue to implement existing occupational health and safety regulations and to draw up their own hygiene concept on the basis of a further updated risk assessment. Based on the risk assessment, restrictions could be eased at the workplace, such as dispensing with the mouth-nose protection.

Nevertheless, companies should not ignore the dynamics of infection. Especially with the beginning of the summer holidays, last year's questions on how to deal with returning travellers are regaining relevance. Even if employees are not in high incidence or virus variant areas, employers should consider allowing employees to work from home for a few days after returning from holiday, where possible.

Companies that simply continue to accept the use of home offices beyond the present day, without at least accompanying communication, accept the risk that individual home office claims will arise. This should be avoided so as not to block future decisions about working life after corona.

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