Expiry of the Corona-Occupational Health and Safety Regulation: What employers now have to observe in occupational health and safety

Meanwhile, it should be noted that Corona-specific regulations of the Infection Protection Act (Infektionsschutzgesetz "IfSG") must still be observed in medical care and nursing facilities. For example, until 7 April 2023, hospitals, rehabilitation and care facilities may only be entered by persons wearing an FFP-2 mask and with a negative test result as defined in Sec. 22a para. 3 Infection Protection Act (Sec. 28b para. 1 no. 3 Infection Protection Act). In other medical facilities, such as doctors' offices, there is also a obligation to wear FFP-2 mask until 7 April 2023 (cf. Sec. 28b para. 1 no. 5 Infection Protection Act).

In all other areas, companies are again largely free to determine whether and which occupational health and safety measures, and in particular infection control measures, are required in the workplace. However, even after the expiry of the Corona Safety Regulation, every employer must comply with mandatory legal requirements in the context of occupational health and safety. In addition to infection protection, the challenges currently facing occupational safety include dealing with mental stress of employees, different working models and the dissolution of working time limits due to the increasing digitalization of the working world.

The general clause of Section 618 German Civil Code

Even during the term of the Corona Safety Regulation, the general relevant statutory provisions on occupational health and safety had to be observed. The general clause of Sec. 618 of the German Civil Code (Bürgerliches Gesetzbuch "BGB") regulates the employer's duty of care. According to this clause, the employer must furnish and maintain rooms, devices or equipment that he has to procure for the performance of the work and must regulate work to be performed under his direction or management in such a way that every employee is protected against hazards to life and health. This general clause of private employment law is substantiated by the regulations of hazard protection under public law, such as the Occupational Health and Safety Act (Arbeitsschutzgesetz "ArbSchG") or the Workplace Ordinance (Arbeitsstättenverordnung "ArbStättV"), as well as by the accident prevention regulations issued in accordance with Sec. 15 Social Code VII (Sozialgesetzbuch VII "SGB VII") VII. For the establishment and maintenance of company premises, the duty of care is specified, for example, in Secs. 3 and 6 Workplace Ordinance. It should be noted that the general clause of Sec. 618 of the German Civil Code gives the employee a legally enforceable claim to fulfilment of the duties of protection and care, although in practice violations are probably mostly prosecuted by state supervisory authorities or the works council.

Specifications of the Occupational Health and Safety Act

The requirements of the Occupational Health and Safety Act fill out the general clause of Sec. 618 of the German Civil Code and must be observed by employers. The Occupational Health and Safety Act obliges every employer to assess possible health hazards for employees at the workplace and to decide on necessary and suitable measures to protect the employees. Sec. 3 paras. 1, 2 Occupational Health and Safety Act contains five basic obligations that apply to every employer: 

• Take measures
• Review measures
• Adjust measures
• Ensure a suitable organization 
• Make arrangements to comply with the measures

Secs. 4 to 14 of the Occupational Health and Safety Act contain special duties that build on this basic duties. They can be supplemented by further special legal regulations. 

Risk assessment

Carrying out a risk assessment (Secs. 5, 6 Occupational Health and Safety Act) is one of the main employer's obligations under the Occupational Health and Safety Act and is essential in order to fulfil the requirement to take measures under Sec. 3 para. 1 sentence 1 Occupational Health and Safety Act. Employers are obliged to carry out a risk assessment to determine the necessary protective measures at the workplace. In a first step, the hazard potential of the work for the employees must be determined so that the necessary occupational safety measures can be determined in a second step (Federal Labour Court dated 19 November 2019, case no. 1 ABR 22/18, NZA 2020, 266, 269). According to the case law of the Federal Labour Court (BAG), the risk assessment does not represent a one-time event, but "is a permanent task in view of the dynamics of work processes and the further development of ergonomic findings" (Federal Labour Court dated 13 August 2019, case no. 1 ABR 6/18, NZA 2019, 1717, 1724).

During the term of the Corona Safety Regulation, one of the primary objectives of the risk assessment was to develop a company hygiene concept to prevent Corona infections. Based on the current incidence of infections, the development of such a hygiene concept is probably of a secondary nature. Nevertheless, the goal of avoiding Corona infections and general hygiene standards to protect against infection will also have to be explicitly taken into account in future risk assessments. In this respect, Corona has probably changed working conditions and occupational health and safety standards in the long term. 

In addition to the Corona Safety Regulation, which has now expired, there are also other legal ordinances that have been issued on the basis of Secs. 18 and 19 of the Occupational Health and Safety Act and which also play a role in the risk assessment. These include, for example, the Workplace Ordinance, the Industrial Safety Ordinance (Betriebssicherheitsverordnung "BetrSichV") and the Ordinance on Preventive Occupational Health Care (Arbeitsmedizinische Vorsorge-Verordnung "ArbMedVV"). 

Even after the end of the Corona pandemic, flexible workplace models have become established in many companies, so that these should to be looked at more closely with regard to risk assessment. The flexibility often consists in the fact that employees can work at different locations, be it in a home office or in a mobile office. The risk assessment has to evaluate the hazard potential of the specific activity, which can lead to the assessment being different for the different types of flexible working models. However, most home office activities will probably not meet the special requirements of telework pursuant to Sec. 2 para. 7 Workplace Ordinance as this requires, among other things, a separate agreement. In these cases, the special protective regulations of the Workplace Ordinance do not apply and the general clause of Sec. 618 German Civil Code and the general regulations of the Occupational Health and Safety Act must be applied. Typically, however, hazards may arise in these forms of work due to inadequate ergonomic work equipment ("kitchen-office", screen size, no height-adjustable desks, etc.) – the employer should take these into account in his assessment. 

Other duties

In this context, reference should also be made to Sec. 12 Occupational Health and Safety Act. This regulates the employer's duty to adequately and appropriately instruct employees on safety and health protection at work during their working hours. Particularly when continuing flexible workplace models, an employer should at least inform employees about general risks in this regard - health protection in this respect depends primarily on the local conditions and the individual behaviour of the employee.

The obligation to introduce a time recording system, which according to the Federal Labour Court (dated 13 September 2022, case no. 1 ABR 22/21 NZA 2022, 1616) falls in interpretation in accordance with EU law under Sec. 3 para. 2 no. 1 Occupational Health and Safety Act, also falls within the scope of occupational health and safety. We reported in detail on 9 December 2022 on this "drumbeat" of the Federal Labour Court (A&O Blog). However, there is currently no reason for anticipatory obedience here. Employers should check what is already being implemented in their company or what is possible and otherwise wait for the change in law announced by the legislator.

Minimum inspection quota from 2026 onwards

In addition, employers must expect more inspections in their operations in the future. In 2021, a nationwide minimum inspection quota for the state occupational health and safety supervisory authorities was introduced in the new Sec. 21 para. 1a Occupational Health and Safety Act. According to the minimum inspection quota, at least 5% of the companies in the state must be inspected by the local occupational health and safety authority from 2026. The obligation is intended to counteract the fact that, in practice, a downward trend in the number of company inspections carried out by the occupational health and safety authorities has been observed for years and, at the same time, the number of occupational accidents is steadily increasing. For example, in 2021, more employees had accidents during working hours than at any time in the last ten years (Statista). There is a transitional arrangement in this respect until 2026. Falling below the quota is permissible for the transitional period (i.e. from 1 January 2021 to 2026) if it is ensured that the number of companies to be inspected is gradually brought up to the target value by 1 January 2026. 

Participation of the works council

It should not be forgotten that the works council has participation rights when it comes to regulations on the prevention of accidents at work and occupational diseases as well as on health protection within the framework of statutory regulations or accident prevention regulations (Sec. 87 para. 1 no. 7 Works Constitution Act ("BetrVG")). The right of co-determination is triggered as soon as the employer has a discretionary power to take the necessary measures. This is the case if there is an objective legal obligation to act with the aim of occupational health and safety, but the determination of the operational implementation regulations is not mandatorily prescribed to the company. For example, the works council has a right of co-determination in the risk assessment pursuant to Sec. 5 of the German Occupational Health and Safety Act. The co-determination includes, among other things, the question of how general specifications for carrying out the risk assessment are designed, i.e. how the risk assessment is organised and carried out. Subsequently, the works council then also has a right of co-determination in the assessment of the risks and hazards determined according to these co-determined rules and the selection of the necessary protective measures. The employer will usually have several options for action here and, thus, the works council also has a right of co-determination with regard to the decision as to which of the measures under consideration is to be implemented.

Conversely, the works council has no right of co-determination insofar as mandatory duties to act are prescribed by law. If the risk assessment shows, for example, that specific protective measures are mandatory for the protection of employees, the works council has no right of co-determination due to a lack of discretionary action for the employer. This would be the case, for example, if certain protective clothing is required by law.

The works council also has a right of initiative as part of its co-determination rights. For example, the works council can demand that a risk assessment is carried out if one has not yet been carried out in certain areas or if it is incomplete. The works council can also enforce regular updating of the risk assessment in accordance with Sec. 3 para. 1 sentence 2 of the German Occupational Health and Safety Act.

Conclusion

Even after the expiration of the Corona Safety Regulation, employers are required to observe mandatory occupational health and safety regulations. In this context, the issue of infection protection should continue to be taken into account as part of the risk assessment. Employers also have to address the necessary occupational health and safety measures with regard to the now more common flexible working models.