1. On October 1, the new SARS-CoV-2 occupational health and safety regulation will come into force and shall initially apply until April 7, 2023. Therefore, companies need to review their operational hygiene concept once again, with a particular focus on the following measures:
- Is the AHA+L rule being complied with in the workplace? It is important to know that when it comes to ventilation concepts, companies need to comply with the requirements of the energy-saving ordinances, EnSikuMaV and EnSimiMaV, which apply from September 1 and October 1 respectively. According to the EnSikuMaV, entrance doors to stores must be kept closed, requiring short and intense ventilation via the windows instead.
- Is personal contact restricted by preventing multiple people from using rooms at the same time, where possible? Staggered working hours for part-time employees could be one solution.
- Employers should consider offering home office as a solution. A corresponding obligation no longer exists.
- Masks are mandatory wherever technical and organizational measures such as ventilation concepts, partitions or home office provide insufficient protection against infection. The employer is required to provide the masks.
- Test offers for all employees working on site. Testing is no longer mandatory, with the exception of special regulations for particular facilities such as those in the healthcare or nursing sectors. The employer can scale the testing offers according to the degree of infection risk. Under certain circumstances, this may also serve as a means of avoiding mandatory masks. Generally, time spent on voluntary testing does not count as working time.
- Increased vaccination coverage: Employers must continue to allow employees to be vaccinated against the corona virus during working hours. The applicable collective agreements or company agreements and the employment contract determined whether an employee is entitled to continued payment of remuneration during this period. As such, a claim for continued payment of wages may arise from Section 616 of the German Civil Code (BGP) if the employment contract does not explicitly exclude its application.
2. Works council has a say
It is important to bear in mind the works council’s right of co-determination pursuant to Section 87 (1) No. 7 of the Works Constitution Act (BetrVG). This also extends to the risk assessment in accordance with the Occupational Health and Safety Act.
3. When is a company hygiene concept appropriate?
One thing is clear: Company hygiene concepts have to fulfill the legal requirements. When implementing concepts like these, companies need to reconcile protecting their employees’ health with the company’s own requirements, as well as the employees’ individual interests. This raises questions. Particularly in cases where an employer would like to implement rules that exceed the laws and regulations or are intended to last longer. That sets the bar for determining the appropriateness of the measures all the higher. The Federal Labor Court recently issued a ruling in one such case: A Berlin-based food manufacturer for the retail sector had prepared a hygiene concept ordering a 14-day quarantine with a ban on entry for employees returning from a risk area designated by the RKI. The employees were not entitled to continued payment of wages during this period.
Although the SARS-CoV-2 Containment
Measures Ordinance from Berlin also stipulated a 14-day quarantine after returning from a risk area, this did not apply to individuals with a medical certificate verifying that they are symptom-free and a negative PCR test taken no more than 48 hours prior to entry.
The plaintiff had traveled from a Corona risk area but had taken a PCR test prior to leaving the country, with a negative result as was the subsequent test after arriving in Germany. The doctor certified that he was symptom-free. Nevertheless, the employer refused to allow the employee to enter the company for 14 days and did not pay wages for that period. The employee then sued for compensation due to default in acceptance. The defendant wrongfully refused to accept his work performance.
The Federal Labor Court upheld the plaintiff’s claim: The company’s ban on entering the premises did not result in the employee’s inability to perform pursuant to Section 297 of the German Civil Code (BGB), given that the employer itself had caused the plaintiff’s inability to work. Nor had the employer demonstrated that it was unreasonable for them to accept the work performance.
According to the highest labor court judges in Erfurt, the instruction to stay away from the company for 14 days without continued payment of wages did not represent reasonable discretion pursuant to Section 106 of the Trade Ordinance(GeoW). Therefore, the employer had failed to provide the plaintiff with the chance to largely rule out infection by conducting another PCR test. In doing so, the company would have been able to ensure the necessary and appropriate protection of the health of its employees, and simultaneously proper operation of the company pursuant to Section 618 (1) of the German Civil Code (BGB).
This is now the third fall in which companies have had to deal with Corona protection measures and their consequences for the company organization, as well as individual interests of a workforce that is increasingly weary of the pandemic. On a positive note, the head of the World Health Organization, Ghebreyesus, finally sees the end of the pandemic approaching. Nevertheless, this year, the energy crisis will further complicate the implementation of company hygiene concepts. Ultimately, concepts requiring regular ventilation shouldn’t eliminate efforts to save heating costs.