New SARS-CoV-2 health and safety regulation: challenge for employers?

On 19 January 2021, the federal and state governments passed a resolution to issue a regulation through the Federal Ministry of Labour and Social Affairs requiring employers to allow employees to work from home wherever their activities permit. The Corona Occupational Health and Safety Ordinance, which temporarily implements this decision until 15 March 2021, is expected to come into force Wednesday, 27 January 2021. With this, the Federal Ministry of Labour is responding to the ongoing infection situation and the initially proposed home office entitlement.

In particular, the draft regulation will make the following changes:

No right to working from home

Employers are encouraged to allow their employees to switch to working from home. Only if there are compelling operational reasons to the contrary can a relocation be dispensed and the employees be refused a change to working from home. At the request of the competent authority, the employer is obliged to explain the operational reasons in accordance with Section 22 (1) Occupational Safety and Health Act ("ArbSchG").

The ordinance does not contain a definition of compelling operational reasons. When interpreting these reasons, the employer is granted discretionary powers. The type of work also plays an important role. Accordingly, the amount of justification required by the employer for a refusal in the case of administrative activities ("white collar") is greater than in the case of manual or production activities ("blue collar"). Additionally, aspects worthy of attention are data protection law or objectively comprehensible operational concerns.

There is no provision for a right of the employee to work from home in the ordinance. In the absence of a subjective right of the employee to work from home, they cannot sue for it in court. The only option left to them is to turn to the competent occupational health and safety authority.

Conversely, the regulation does not impose any obligation on the employee to work from home. An obligation to work from home is still only possible on the basis of an individual contractual agreement, a company agreement or, in exceptional cases, temporarily on the basis of the right of direction.

Requirements for on-site work

If the employee decides to work on site, or if this is unavoidable, a minimum area of ten square meters must be available to them there. If this is not possible or if a minimum distance of 1.5 meters cannot be maintained, the employer is obliged to provide medical (FFP2) masks. Everyday masks are expressly no longer sufficient.

For companies with more than ten employees, the ordinance states that employees must be divided into work groups that are as small as possible. Personal contact between the individual work groups is to be minimized. Changes to these divisions are also to be avoided as much as possible. The employer should allow employees to work in the respective work groups at different times, insofar as this is permitted by the operational conditions.

Co-determination by the works council

In companies with a works council, the employer must involve the works council in the implementation of new measures. The works council has a co-determination right in accordance with Section 87 (1) Nos. 2, 3, 6 and 7 Works Constitution Act ("BetrVG") when working from home is introduced. In addition, any subsequent assignment of the "home" location constitutes a transfer that is subject to co-determination pursuant to Section 99 (1) BetrVG if it is to last longer than one month. The assignment of employees to rotating work groups, changes in working hours and breaks are subject to co-determination pursuant to Section 87 (1) No. 2 BetrVG.

Employers must act by Wednesday

If they have not already done so, employers are now required to review their operations and then determine the extent to which working from home can be introduced or expanded. If this is not possible, operational procedures should be adjusted to allow as few employees as possible to work in close contact with each other. This can be done by making working hours more flexible or implementing shift systems.

In addition, employers whose companies have a works council must now sit down with the works council and reach agreements by Wednesday on working from home and the changed working conditions in the office. This is because the measures required to implement the regulation are largely subject to co-determination within the company.

In this context, any employer-side decisions to have employees work from home should be put to the test, because the regulation also indirectly clarifies that the employer is still not granted the option of ordering employees to work from home.

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