COVID-19 - Return to work guidelines - Germany

Due to the gradually relaxed regulations by the German government, many employers are considering bringing back their employees into the workplace in the coming weeks. However, when bringing back employees to the workplace, employers need to take a number of precautionary measures.

For a detailed account of possible measures as well as changes to employment law, please listen to the recording of our webinar here.

COVID-19 testing and access restrictions to the workplace

Understandably, employers wish to take the most efficient precautions against employees getting infected with COVID-19 eg by limiting access to the workplace, especially by making access dependent on various requirements such as COVID-19-testing, taking of temperature or mandatory questionnaires.

Whether such measures are permissible considering the current Corona-crisis is untested law and will need to be decided on a case by case basis. For all of the above, the employer's interest in the result of the test or questionnaire and the employees' interest in their physical integrity and right to privacy must be weighed. This will tip in the direction of the employees' interests the more the employees' private sphere is affected. Tests which are less invasive are therefore more likely to be allowed.

In principle, questionnaires are the least invasive way of gathering relevant information (eg if the employee is feeling sick, has fever, has been in contact with an infected person during the last 14 days). As long as the questions are limited to what the employer needs to know, questionnaires are likely allowed. Taking of body temperature is more invasive. In some federal states within Germany, the taking of temperature is already prohibited due to data protection concerns while in most federal states, the taking of temperature, should be permitted, at least with the employee's consent. Taking of tests for COVID-19 is, although not prohibited by law, likely only permissible in case employees agree to be tested.

Occupational Health and Safety Standards

Occupational health and safety standards COVID-19 published by the Federal Ministry of Labour and Social Affairs include regulations on various precautions to be taken to ensure the protection of employees returning to the workplace.

These standards, published mid-April, are not law. However, they are a very helpful guideline for employers on the concept of occupational health and safety during the Corona crisis. Employers will have to observe the guidelines closely since they are responsible for the occupational health and safety of their employees and part of the necessary protection are now the following guidelines:

• Safety distance of at least 1.5 metres between persons must be observed. Appropriate barriers, markings or access rules shall be implemented to ensure the keeping of distance.

  • Transparent separators must be installed in places open to the public. These separators have been in place in most supermarkets but will now likely become even more widespread. Where the required distance between employees cannot be observed, such transparent separators are an option to separate workspaces.

  • Floor and wall markings: Experience has shown that where larger numbers of people tend to gather, the safety distance should be marked (eg with tape)

  • Splitting workforce in rolling teams: if a reduction of the occupancy density of working areas and social facilities is not possible, introducing staggered working and break times, shift operation, splitting the workforce in teams attending the office on a rolling basis etc should be considered. This particularly also in order to try to avoid that all employees or a larger part of the workforce is affected when an infection of an employee should surface.

• Hygiene rules: There is a number of rules concerning hygiene. This includes the regular cleaning of door handles, handrails etc. The employer must impose their own hygiene rules such as rules for personal hygiene (handwashing, disinfection) workplace and social room hygiene (cleaning schedules, provision of disinfection but also required safety distance between employees) and ventilation rules (opening of windows, information on the ventilation system). We recommend to have employees sign a declaration concerning the hygiene standards to prove that employees have been instructed accordingly.

• Work equipment: Special attention is to be paid to tools and work equipment. All equipment should only be used by one person wherever possible. If the equipment is handed over to another person, it should be cleaned beforehand

• Business trips and face-to-face meetings: should be reduced to the absolute minimum or, if possible, replaced by telephone and video conferences. This is expanded by planned changes in regulation such as  widening the possibilities of "Online Courts" where lay judges as well as parties, lawyers and witnesses can participate in court sessions via video as well as on the planned changes in regulation making works council meetings and collective bargaining possible via video or telephone.

• Mouth-nose covers (masks): Currently, mouth-nose covers are obligatory in public transportation and public places. Also, in the event of unavoidable contact with other persons or if protective distances cannot be maintained, mouth-nose covers should be provided and worn. Any protective wear must only be used by one person. The employer is obliged to provide protective wear.

• Company guidelines: Employers should set up transparent company guidelines on the above measures taken which should be communicated to the employees. Additionally, the employer is obliged to draw up company rules for rapid verification of potential COVID-19 cases. This includes the possibility of contactless fever measurements. Until the suspicion has been clarified by a doctor, the employee is to be assumed to be unable to work. The potentially infected person should immediately contact a doctor or the public health department by telephone for clarification.

• Home Office: Even with the above measures, Home Office is still the preferred way of working. If at all possible, employees should work from home. This is especially the case if the required safety distance cannot be observed in the workplace.

Regular occupational and health safety standards are still to be observed and are only broadened by the additional standards. If an employer fails to comply with the requirements, they may have to pay damages to employees in case of sickness. In addition, the employer may commit administrative offences and even criminal offences if the guidelines are not observed.

In order to ensure compliance of the above standards, particularly in larger companies, is of paramount importance to train and educate employees, not only to avoid the above fees and criminal offences but also to protect the health and safety of all employees.

See our Coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.