New occupational health and safety regulation in relation to the Corona pandemic

The previously applicable SARS-CoV-2 occupational health and safety regulation was due to expire on March 20, 2022. Shortly before this deadline expired, the cabinet of the German government agreed on a new occupational health and safety regulation. The amendments will take effect from March 20, 2022 and will initially apply for a limited period up to and including May 25, 2022.

Some of the changes to the regulation have far-reaching consequences for employers and employees.

Operational hygiene concepts

Unlike in the past, companies will now be able to independently determine which measures are to be applied in specific companies. For this purpose, employers must develop company hygiene concepts or adapt existing concepts to the respective risk situation in the company. The regulation contains a number of measures that employers are to examine. These include a weekly offer for corona tests, the reduction of personal contacts within the company and the provision of medical face masks. The hygiene concept must be made available to all employees.

Since the hygiene measures are always linked to the risk situation in the respective company, employers have a relatively large discretionary scope as to which measures they would like to implement in the future.

Elimination of the home office obligation

The abolition of the so-called home office obligation for employees is likely the biggest change. As of this day, employers are generally allowed to require their employees to return to the office. In return, however, employers are also obliged to take reasonable and appropriate protective measures for their employees.

However, since employers are still obligated to consider the reduction of personal contacts within the company as part of their hygiene concepts, it is still recommended, depending on local conditions, to continue to reduce the simultaneous use of operating and break rooms to the necessary minimum.

“3G” at work

The vaccinated – recovered – tested (“3G”) scheme based on Art. 28b of the Infection Protection Act will also expire on March 20, 2022. This has implications in particular for employees who have previously had themselves tested. Without an extension of the measures, they will initially be allowed to return to work without testing from Monday.

At the same time, employers are no longer obligated to offer tests twice a week in their company. The new protection regulation only requires a weekly test offer.

Since employers are at the same time obliged to draw up company hygiene concepts, it is quite conceivable to reintroduce a company-related testing obligation through this loophole. The regulations on data protection and, where applicable, the co-determination rights of the works council must also be observed.

In contrast hereto, the employers’ obligation to inform employees about the risks of a Covid 19 infection and, at the same time, to provide information about vaccination options remains unchanged. They must still enable vaccination during working hours.

Practical advice

Employers should establish current hygiene concepts by March 19, 2022, and review whether more extensive changes are needed in the company in order to meet the new requirements.

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