New German Covid occupational health and safety regulation

With one week to go before the "Bundesnotbremse" (federal law to prevent further spread of the Coronavirus), which came into effect on 23 April 2021, expires, it is now clear what the next few months will look like for businesses and employees. As of 1 July 2021, the new Covid occupational health and safety ordinance will apply, limited until 10 September 2021.

The following fundamental changes and regulations apply from 1 July:

Lifting of the "working from home obligation"

Probably the most drastic change is that the Covid occupational health and safety ordinance no longer contains neither an obligation for the company to offer working from home nor an obligation for employees to accept this offer. Accordingly, these obligations for companies and employees will cease from 1 July 2021 and employees can return to their workplaces without companies or employees having to have special reasons for doing so.

Company hygiene concept and provision of mouth-nose protection

The Covid occupational health and safety ordinance includes the obligation for companies to review and update their risk assessments with regard to additionally required measures of occupational infection control. As a consequence of the return of employees from home to the workplace, companies should again adapt their operational procedures and in particular take into account the SARS-CoV-2 occupational health and safety regulation.

If the risk assessment shows that protection of employees by technical and organisational protective measures is not sufficient and the wearing of medical face masks (mouth-nose protection) by employees becomes necessary, these are to be provided by the company. Employees are obliged by the ordinance to wear the masks provided by the company or at least equivalent masks.

Contact reduction in the company

All appropriate technical and organisational measures must be taken within the company to reduce contact between persons due to operational reasons and to reduce the simultaneous use of rooms by several persons to the minimum necessary for operations.

The ordinance also mentions working from home as a possibility for reducing contacts. Where this is not possible, further protective measures are necessary. The explanatory memorandum to the ordinance mentions, among other things, intensive and proper ventilation and the installation of partitions where the distance between persons cannot be maintained.

Due to the clearly communicated abolition of the "home office obligation" before the ordinance was issued, this does not seem to be an obligation to work from home through the back door.

Obligation to offer quick or self-tests

Companies remain obliged to make rapid or self-tests available at least twice a week to their employees who are not working exclusively from home. However, the Covid occupational health and Safety ordinance provides exemptions for those employees who have recovered from a Covid infection or who are fully vaccinated.

As before, employees are neither obliged to make use of the test offers nor to inform their employer whether they have recovered or are fully vaccinated. As a result, companies only benefit from the exemption in cases where employees voluntarily share their status with the employer.

As a result, the design of working conditions is now once again part of agreements between companies and employees, which must be geared towards the company's circumstances such as premises and equipment, but certainly also taking into account the respective regional situation. The Covid occupational health and safety ordinance seems to be a step towards normality, enabling companies and employees to return to a more "normal" working life with the necessary prudence.

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