SARS-CoV-2 Occupational Health and Safety Regulation (SARS-CoV-2 Arbeitsschutzverordnung)

1. When does the regulation apply and for how long?

The ordinance will come into force on the fifth day after its promulgation, which was on January 22nd, and is (initially) limited in time until 15 March 2021.

2. What role does the size of the company play?

The ordinance applies regardless of the size of the company. Special rules apply in companies with more than ten employees (see point 4 below).

3. Does the ordinance invalidate other regulations?

No, in addition to the Occupational Health and Safety Act, the regulations of the Infection Protection Act (Arbeitsschutzgesetz) and the Occupational health and safety ordinances (Arbeitsschutzverordnungen) according to § 18 para. 1 and para. 2 ArbSchG (Arbeitsschutzgesetz) as well as the specifications of the SARS-CoV-2 occupational health and safety standard (Arbeitsschutznorm) and the SARS-CoV-2 occupational health and safety rule (Arbeitsschutzregel) continue to apply. This is supplemented by the Biological Substances Ordinance (Biostoffverordnung)applicable in the healthcare sector.

4. What new regulations does the regulation contain and what are the individual operational effects?

4.1 Review of the risk assessment (Gefährdungsbeurteilung)

Operational measures:
The risk assessments according to §§ 5 and 6 of the Occupational Health and Safety Act (ArbSchG) must be updated and documented with regard to the measures of operational infection control. The works council's rights of participation must be respected.

4.2 Reduction of contacts

• through technical and organisational measures (personal contacts)
• by the use of information technology and other appropriate protective measures (company meetings).

Operational measures:
The employer must, as a matter of priority, take all technical and organisational precautions, for example reorganisation of operational procedures or use of technical aids (e.g. room use by one person only, enabling video conferencing), to reduce contacts.

If organisational measures cannot be implemented, the employer must take appropriate protective measures, i.e. install partition walls and draw up ventilation plans.

Only if it is not possible to remedy the situation in any other way, measures should be taken that affect employees personally by establishing rules for their behaviour (e.g. rules on the use of common rooms, prohibitions on entering certain areas).

4.3 Home Office offer if there are no compelling operational reasons to the contrary

Operational measures:
The possibility of working in a home office must be (compulsorily) granted for office work or comparable work. This can only be prevented by compelling operational reasons, including that the spatial and technical conditions in the employee's home must be available. However, the lack of availability or IT equipment is likely to be only a temporary obstacle.

A regulation (employment contract or company agreement) must be made to implement the home office activity.

If a home office is not set up because, for example, the work process cannot be mapped there or confidentiality interests or data protection regulations conflict with this, the competent authority can demand information from the employer and, in case of doubt, prohibit the work (section 22 ArbSchG).

The employee does not have to accept the offered work in the home office. Neither does he have the right to sue for home office work, but in the event of a refusal he can turn to the competent occupational health and safety authority. This is likely to make it much more difficult to enforce claims by way of interim legal protection in the current situation.

4.4 In the case of unavoidable shared use of rooms

• Compliance with minimum areas per person (10sqm per person)
• Alternatively: appropriate protective measures, such as ventilation and separation devices

Operational measures:
Examination of areas and, if necessary, organisational measures, provision of suitable separating devices and preparation of ventilation plans.

4.5 Special regulations for companies with more than 10 employees

• Formation of working groups as small as possible
• Restricting contact to the extent necessary for the operation
• Time-shifted working, if operational conditions permit this

Operational measures:
Organisational measures by forming work groups, drawing up attendance and time schedules.

4.6 Mouth-nose protection (MNP)

Employers must provide mouth-nose protection if

• no or insufficient contact reduction possible,
• minimum distance (1.5 m) cannot be maintained
• for activities with increased aerosol emission

Suitable mouth-nose protection:

• medical face mask
• FFP2.mask
• comparable respiratory protection mask (Annex to the Ordinance)

Operational measures:
Checking activities, drawing up distance rules and documentation, the employer can "take other equally effective measures" instead of MNP, burden of proof and risk should lie with the employer. The respective costs are to be borne by the employer.

5. Which regulations did not make it into the ordinance?

In the original draft, stricter measures (especially the antigen testing obligation) were made dependent on the incidence value of the RKI. These regulations were not included in the final ordinance. The rules of the preliminary regulation therefore apply everywhere and thus also if the incidence value in the region concerned is below 50 or below 200. Companies can therefore proceed uniformly for their operations in regions with different incidence levels.

In addition to regular testing, the regulations on canteens and break rooms were not included in the final ordinance.

The comprehensive sanctioning by means of administrative offences – and thus their prosecution by the occupational health and safety authorities – was also deleted in the final ordinance without replacement.

It should be noted, however, that specific orders issued by the authorities must be complied with. This applies in particular in connection with the home office requirement. Such orders can also include the prohibition of activities at the workplace. If an employer violates an "enforceable order", this can be punished with a fine of up to EUR 30,000. Therefore, the employer faces a sanction if he does not comply with orders of the occupational health and safety authority. However, this is only realistic if the employer defies a prior request by the authority.