Germany: 10 Back-to-Work Considerations

By Michael-Johannes Pils and Johannes Alexander Höft © Taylor Wessing September 17, 2020
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​In late August 2020, the German Federal Ministry of Labor and Social Affairs published new COVID-19 occupational health and safety rules, which specify already existing occupational health and safety standards. In light of this, employers should review their current back-to-work set of rules, if any, or implement corresponding policies as soon as possible, bearing in mind the following 10 key points.

Update Risk Assessment

The obligation to update risk assessment due to the pandemic is mandatory. Smart solutions are needed. Proper documentation is important. The risk assessment must also reflect the pandemic-related special, psychological and work-time burdens, including when working in the home office.

Active Instruction

The core component of COVID-19 occupational safety is the correct, documented instruction of all employees and the associated monitoring. In terms of content and timing, the instruction must be based on the risk assessment and must always take place before the start of work. It must also contain information on the current state of knowledge, the risk of infection and the risk of a new illness when recovering employees return to work. With regard to the latter, special obligations to provide support must be observed. Electronic media can also be used for the instruction.

Establish Management for Suspected Cases

Employers must take precautions to track contacts and prevent infection if COVID-19 is suspected. In the event of an outbreak, the steps necessary within the company must be defined.

Adjust Rules for Working from Home

At the latest, since the COVID-19 occupational health and safety regulations came into effect, working from home must be given a proper legal basis. Employers should therefore not only review or conclude work-from-home agreements—with the works council, if necessary—but also delegate specific employer obligations regarding the home office (e.g. obligations under work hours and workplace law) in writing to avoid their own liability.

Design Safe Workplaces

Workplaces must be designed in such a way that infections can be avoided and possible chains of infection are interrupted. This requires a safety concept. For example, separate room or partitions may be necessary. In sanitary rooms, canteens or break rooms, the "occupancy density" must be reduced by means of a utilization concept. Filters may be necessary in ventilation and air conditioning systems, and air recirculation systems must be checked and, if necessary, adjusted. Employees must be instructed on these new workplaces and work methods.

Introduce Smart Work Organization

In addition to technical solutions for workplaces, the organization of work often has to be changed. In order to prevent infection, it may be necessary to rethink staff deployment or shift planning, to reorganize break schedules or vacation planning, or to personally assign or newly procure work equipment. The risk of infection must be determined when machines are occupied or in cooperation with third parties.

Reduce Business Trips

Business trips must be limited to what is absolutely necessary. If they are necessary, additional protective measures may have to be taken when booking if travel is by air, train or rental car. If electronic meetings are used, data protection must be observed.

Regulate Access by External Persons

The access of external persons must be limited to the necessary minimum. Priority must be given to the use of electronic media. If access is necessary, distance rules and limitations on numbers must be observed. The external person must be informed about the company's safety measures and the visit must be documented.

Provide Occupational Medical Prevention

Employers are obliged to offer occupational health prevention to all employees. To this end, the company physician must be available for the employees. In addition to the preventive medical check-up, advice must also be offered.

Check 'Co-determination'

Occupational health and safety is largely subject to co-determination by the works council. If the co-determination is not recognized, the works council can, in the worst case, even obtain the temporary suspension of operations.

Michael-Johannes Pils is an attorney with Taylor Wessing in Düsseldorf, Germany. Johannes Alexander Höft is an attorney with Taylor Wessing in Hamburg, Germany. © 2020 Taylor Wessing. All rights reserved. Reposted with permission of Lexology.

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