After several weeks of quasi-lockdown in Germany and immense public pressure to lift limitations imposed by COVID-19, more and more companies are starting to resume their activities. For some, this means increasing the number of employees who can again come in and work from a company office, rather than from their homes. For others, it means a complete restart of operations. In this situation, employers are faced with a myriad of legal requirements they have to comply with. Employers need to take the right actions at the right times to minimize the risk of potential liability that could result from an improper resumption of business activities.
The top priorities for employers when resuming business activities are the following:
- Workplace Safety and Infection Prevention Standards (see no. 1 below)
Employers need to familiarize themselves with the latest workplace safety and infection prevention standards aimed at limiting the spread of COVID-19. On 16 April 2020, Germany’s Federal Minister of Labor and Social Affairs, Hubertus Heil, together with the Managing Director of the German Statutory Accident Insurance, Dr. Stefan Hussy, presented a uniform SARS-CoV-2 Occupational Safety and Health Standard. This standard formulates concrete recommendations for occupational safety and health measures to be adopted during the coronavirus crisis. Employers are asked to adopt technical, organizational and personal measures in order to minimize the spread of the coronavirus in the workplace. Technical measures can, for instance, include the placement of optical and physical barriers in the workplace to ensure a minimum safety distance of 1.5 meters, the regular cleaning and disinfecting of facilities and devices, the provision of necessary hygiene and sanitary products, and improvements to ventilation systems. Organizational measures can include, without limitation, the implementation of a pandemic plan, modified access rules, shift working systems, staggered working and break systems, the assignment of tools and individualized personal protective equipment (PPE). Finally, personal measures may include the requirement to wear mouth-and-nose coverings and PPE, instruction and active communication, and special measures for the protection of high-risk groups.
- Risk Assessment (see no. 2 below)
The implementation of adequate and suitable technical, organizational and personal measures should be part of the mandatory risk assessment that each employer has to conduct based on statutory safety and health at work laws. While it is an ongoing obligation of the employer to assess and address workplace hazards for each workstation on a regular basis, the coronavirus has, in a very short time, created a new type of exposure that literally applies to every workplace. Activities of employees are affected by this in different ways, so, in addition to general rules of conduct for all employees, specific measures will need to be identified and taken depending on the particular risk situation of each workplace. There are internal and external specialist groups and experts, such as the health and safety committee or the occupational physician, that need to be involved in risk assessment.
- Testing and Health Screening (see no. 3 below)
Part of an employer’s COVID-19 response strategy may be the implementation of employee testing (such as temperature checks) or the introduction of health declaration measures. Employee’s health data are special category (sensitive) personal information for purposes of EU and German data protection laws and can be collected and processed only under very strict conditions. Employers need to carefully balance the benefits that the collection and processing of health data can bring as part of an overall safety and health at work concept versus the potential (financial) risks that result from a violation of data privacy laws.
- Co-Determination Rights (see no. 4 below)
Most of the actions that employers take and implement with respect to safety and health at work in response to COVID-19 are subject to co-determination by the works council and require involvement of additional internal and external bodies and specialists. Works council consultation is often time-consuming and, if an agreement cannot be reached, may have to be continued in conciliation proceedings that are costly and will take even more time. Employers should start their COVID-19-related risk assessment early and in good time ahead of bringing employees back into the business.
- Managing Employees Working Remotely or Absent from Work (see no. 5 below)
Employees need to be mindful of any employees currently working remotely or those not working at all for various reasons. They should all be included in regular and effective communication around a company’s “back to business” plans and the measures it plans to take in terms of safety and health at work. Regular updates and proactive communication will allow absent employees to address any concerns that they may have, which can result in individual solutions and a good team spirit.
- Headcount Planning (see no. 6 below)
While many companies have settled in with the current situation and try to bridge some time using short-time work schemes, part-time or sabbatical arrangements or the use of flexible working time schemes, in the mid- or long-term, some tough decisions will need to be taken as to whether reducing existing headcount is necessary to adjust to declining work volumes. Larger layoffs may be time-consuming and costly. In business operations with works councils, depending on certain thresholds, employers will need to follow collective consultation procedures before terminations can be implemented. If an agreement cannot be reached with the works council, a conciliation board may have to be established. Smaller headcount reductions or the implementation of a voluntary leaver program may be more efficient and faster and can help reduce the number of forced redundancies at a later stage. For other companies, it may be a good time to fill vacancies, benefiting from increased unemployment rates and the fact that highly skilled and talented individuals may have just lost their jobs.
In more detail:
1. Workplace Safety and Infection Prevention Standards
On 16 April 2020, Germany’s Federal Minister of Labor and Social Affairs, Hubertus Heil, together with the Managing Director of the German Statutory Accident Insurance, Dr. Stefan Hussy, presented a uniform SARS-CoV-2 Occupational Safety and Health Standard (“SARS-CoV-2 OSH Standard”)1. This standard provides recommendations for occupational safety and health measures to be adopted during the coronavirus crisis. It is a useful resource for employers that are in the process of reorganizing their work environment and putting rules of conduct in place looking to best protect their employees against the risks of COVID-19. However, the standard is neither directly binding, nor can it substitute the mandatory risk assessment that employers have to perform taking into account the specific situation and circumstances of each workplace (see below 2).
The special occupational safety and health measures set out in the SARS-CoV-2 OSH Standard and described in more detail below are intended to protect the population by breaking infection chains, safeguarding the health of employees and restoring economic activity while continuously flattening the infection curve medium to long-term.
a) Working during the pandemic – focus on occupational safety and health
According to the standard, there are two main principles which apply:
- Irrespective of the business action plan on temporary additional measures, in cases of doubt and where the minimum distance cannot be reliably maintained, mouth-and-nose coverings should be provided and worn.
- Persons with respiratory symptoms (other than, for example, a cold that has been diagnosed by a doctor) or with fever should not be on company premises at all (exception: critical infrastructure employees; see RKI2 recommendations). Employers must establish a procedure (such as in an infection emergency plan) for dealing with suspected cases.
b) Company action plan on temporary additional measures for the purpose of infection protection
The employer has the responsibility to implement necessary infection control measures in accordance with the results of the risk assessment (Gefährdungsbeurteilung; see below 2). The implementation of additional infection control measures should be coordinated by the occupational health and safety committee (Arbeitsschutzausschuss) or, absent such a committee, a special coordinating / crisis unit established under the direction of the employer. The action plan should provide for the implementation of special technical, organizational and personal measures for the business.
aa) Special technical measures
Special technical measures include measures in connection with the arrangement of the working place, washroom facilities, canteens and break rooms, ventilation, collective accommodations (washrooms, kitchens and communal rooms), and home office, as well as technical measures to reduce the number of business trips and in-person meetings.
Where the minimum safety distance of 1.5m cannot be maintained, alternative protective measures, such as the implementation of transparent, physical barriers, should be considered. Working from home concepts should continue to be used, especially if, otherwise, several employees would need to share a company office or work in close physical proximity. Frequently used devices and surfaces should be regularly cleaned and disinfected. Sufficient sanitary and hygiene products have to be provided. Ventilation helps to significantly reduce the number of pathogens in the air and so to reduce the risk of infection.
Technical measures may need to be planned for building sites, farms, field service staff, delivery services, transport and internal travel within the company. Team setups and the use of vehicles should be structured in such a way that as little interaction as possible occurs between different groups of employees. Teams should be kept as small as possible.
Special attention should be paid to collective accommodations and the risks arising from shared use of washrooms, kitchens, sleeping and communal rooms, silverware and dishes.
Business trips and personal, i.e., face-to-face, meetings should be reduced to the absolute minimum and, to the extent possible, technical alternatives should be made available (e.g., telephone or video conferencing). In case personal meetings are absolutely necessary, the participants must maintain the required safety distance.
bb) Special organizational measures
The special organizational measures include measures in connection with ensuring the maintenance of the required safety distance, the use of work equipment and tools, the organization of working times and breaks, the storage and cleaning of work clothing and personal protective equipment (PPE), the access of externals to the business premises, rules in case of suspected cases and the minimizing of psychological stress effects due to COVID-19.
The use of means of access (e.g., stairs, doors and lifts) must be organized in a way that the maintenance of the safety distance is possible. At places where employees regularly come together (e.g., time recording terminals, canteens, tool and material stores, lifts, etc.), the safety distance must be marked out in queuing areas, e.g., with adhesive tape. The minimum distance of 1.5m must also be maintained between employees in situations where multiple employees work together. Where this cannot be ensured, alternative measures must be taken (e.g., wearing mouth-and-nose coverings).
Tools and working equipment should be used by each employee alone or should be regularly cleaned, especially before being used by others. Depending on the circumstances, the use of protective gloves may be an alternative. The frequency of occupation of work areas and communal facilities must be reduced, e.g., by way of shift working schedules or staggered working and break times.
Personal protective equipment (PPE) of any kind and work clothing must be individually assigned and not shared by multiple individuals.
The access of externals to the business premises must be reduced to a minimum.
Operational measures must be implemented to allow for a rapid investigation of suspected cases of COVID-19. Relevant symptoms of infection with the coronavirus include fever, coughing and shortness of breath. For this purpose, provision could be made for contactless temperature-taking and the introduction of health declarations (subject to legal limitations; see below 3).
cc) Special personal measures
The special personal measures include measures in connection with the use of mouth-and-nose protection and personal protective equipment (PPE), instruction and active communication, as well as preventive occupational health care and protection of high-risk groups.
For each of the measures described above, the Federal Institute for Occupational Safety and Health (Bundesanstalt für Arbeitsschutz und Arbeitsmedizin - BAUA) has made available additional guidance describing the measures in more detail and in consideration of specific working environments.3 In addition, on 30 April 2020, the German Statutory Accident Insurance (Deutsche Gesetzliche Unfallversicherung - DGUV) published a list of sector-specific resources that help employers identify the appropriate and recommended measures for their industries and businesses.4
Employers need to be aware of additional (local) legislation on the state, county or municipality level that applies to specific businesses and sectors, such as the retail business, health care and nursing care facilities, child care centers and schools, recreational facilities, hotels, and restaurants.
2. Risk Assessment
In accordance with the Safety and Health at Work Act (Arbeitsschutzgesetz - ArbSchG) and the accident-prevention regulation “Principles of Prevention” (DGUV Regulation 1), regardless of the size of their business, employers are required to conduct a risk assessment (see Sec. 5 ArbSchG). This obligation is defined in more detail in a number of ordinances that are based on the Safety and Health at Work Act, such as the Workplace Ordinance (Arbeitsstättenverordnung) and the Ordinance on Industrial Safety and Health (Betriebssicherheitsverordnung).
The obligation to conduct a risk assessment is a permanent and ongoing task. It includes the employer’s duty to identify and assess hazards for every activity at each workstation and determine measures necessary to improve the level of safety and health. There is a need to regularly verify whether the measures determined for a specific workplace are still suitable to mitigate risks arising from the activities performed. Whenever circumstances change (e.g., by implementing new tools, devices or processes), the adequacy of existing risk mitigation measures needs to be reassessed. If changes are required in response to new hazards, the previously defined risk mitigation measures may need to be adapted. A change in circumstances may also result from external causes, such as the global spread of a disease like COVID-19. As soon as a new hazard is discovered, the employer has to investigate the situation and perform a risk assessment. Risk assessments in light of COVID-19 should be made a priority and should be completed (i.e., risk mitigation measures should be determined and put in place) before employees return to their workplaces.
The law itself does not define in detail how a risk assessment is to be performed, as this is very much dependent on the circumstances of the specific workstation and activities. However, there are guiding principles that need to be observed.5
During times of COVID-19, the “standard” risk assessment approach needs to be modified to account for the specific risks resulting from close physical interaction between employees, employees and customers / suppliers, and employees with third parties, such as during their daily commute to work and the ways in which the coronavirus can be transferred. The exposure needs to be assessed based on the specific locations where employees meet others, whereby the focus needs to be on areas that are naturally frequented by a larger number of individuals, such as sanitary facilities, kitchens, locker and break rooms, meeting rooms, collective accommodations, meeting or waiting areas, and vehicles. The assessment also needs to focus on tools and devices commonly used by more than one person.
For employers in certain sectors, additional obligations arise from the Ordinance on Biological Agents (Biostoffverordnung – BioStoffV), which further increases the standard of diligence employers need to observe when conducting their risk assessment. On 19 February 2020, the Committee on Biological Agents (Ausschuss für Biologische Arbeitsstoffe – ABAS), a special department of BAUA, has classified the coronavirus (SARS-CoV-2) as a biological agent of the risk category 3.6 For groups of individuals who may have direct contact with the coronavirus due to their occupation, such as employees in medical practices, hospitals, during transports of infected persons or in laboratories, the protective measures must be adapted to the requirements of the BiostoffV and the sector-specific safety regulations in the Technical Rules for Biological Agents (Technische Regeln für Biologische Arbeitsstoffe - TRBA). TRBA 250 and TRBA 100 regulate measures to protect employees against infections in the health care and welfare sectors and in laboratories. The specific actions to be taken in a given situation depend on the infection potential of the pathogen, its transmissibility and the activity to be performed or the resulting exposure. According to current knowledge, the coronavirus can be transmitted through the inhalation of aerosols and through contact with mucous membranes (nose, mouth, eyes). The necessary protective measures can be determined in accordance with TRBA 250 and TRBA 100. Moreover, the 2012 ABAS decision 609 on humane influenzas for which sufficient vaccination is not available, describes additional measures that can be transferred analogously to the handling of other airborne pathogens of risk group 3, which also include SARS-CoV-2. For diagnostic laboratories, a staged procedure for the novel virus SARS-CoV-2 was defined by ABAS in its decision of 19 February 2020.
Special care must be taken of protected category employees, such as pregnant or nursing women, juveniles, and employees with disabilities.
The risk assessment is generally supported by the safety and health committee (Arbeitsschussausschuss), the appointed occupational safety and health specialist (Fachkraft für Arbeitssicherheit), and the occupational physician (Betriebsarzt). All of these functions closely cooperate with the works council.
Employers are required to document the outcome of their risk assessment and the measures determined (see Sec. 6 ArbSchG). In addition, the employer has to provide sufficient and appropriate training to employees on occupational safety and health during their working hours (see Sec. 12 ArbSchG). The training shall include instructions and explanations specific to the workplace or to the employee’s tasks. The training must be adapted to the development of any hazards and repeated regularly if necessary.
3. Testing and Health Screening
With the resumption of business activities and the need to implement more effective infection protection measures, some employers may consider employee screening measures (i.e., temperature checks), the implementation of stricter reporting obligations to managers / HR for employees with a confirmed infection or who show symptoms of an infection, and the implementation of a requirement to fill in a declaration or self-assessment as to whether employees were in contact with infected or potentially infected persons or even travelled to a certain geographical region / high-risk area. The lawfulness of any such measures depends on the specific situation and circumstances.
As far as temperature checks are concerned, taking an employee’s temperature upon entering business premises (e.g., by using contactless thermal scanners) qualifies as processing of sensitive personal data (health data) under EU and German data protection laws, regardless of whether the results are recorded. The processing of sensitive / health data is strongly restricted. There are very few exceptions, such as if the processing of sensitive data is in the public interest in the area of public health as, for instance, the protection against serious cross-border health threats or to ensure a high quality and safety standard in the health care sector. In any event, a justification requires that the measures are necessary and proportionate. So far, the German data protection authorities of the different federal states have not taken a consistent view as to whether temperature checks are permissible. One of the main concerns is that temperature checks are not even a suitable measure (i.e., not necessary) to identify employees infected by the coronavirus. One reason is that it may take up to 14 days (incubation period) until individuals show symptoms. However, employees who have contracted the virus start being contagious before the end of the incubation period, which means they can spread the virus before the temperature check can discover the fever. In addition, some employees who are infected may not even show symptoms and so would not be discovered by temperature checks either. Finally, an increased body temperature may have various other causes and cannot automatically be linked to a COVID-19 infection.
Despite existing concerns regarding the permissibility of temperature checks, employers should always consider the circumstances of the specific situation. The fact that an employer who implements temperature checks acts in the best interest of the safety and health of its workforce is a major aspect that will need to be taken into account by data protection authorities as well. In our view, the likelihood of significant fines is limited in this context. In any event, in order to be proportionate, temperature checks should only be one element of a multifaceted set of measures. Results of temperature checks should not be recorded and should not be shared with third parties. Employees need to be adequately informed about the processing of sensitive (health) data. There should be an ongoing review and assessment as to whether temperature checks are still a suitable and necessary measure in response to the COVID-19 risk.
The establishment of a requirement for employees working on company premises to immediately inform their manager or the HR department if they have a confirmed infection or experience COVID-19-like symptoms is generally permissible if intended to allow the employer to take steps to protect other employees. However, employers need to be aware that some of the local data protection authorities take a stricter position and have voiced concerns as to the permissibility of requiring employees to report a confirmed infection or COVID-19-like symptoms to their employer. In some regions, additional requirements must be met in order for such a reporting obligation to be permissible.
The permissibility of a requirement for employees to complete a declaration or fill in a self-assessment on their COVID-19 exposure before returning to business premises depends on the exact content of the declaration or self-assessment. Questions about recent contact with persons who have been tested positive for COVID-19 are permissible. On the other hand, questions about contact with persons who only showed symptoms but have not been tested positive are potentially not suitable to limit the spread of COVID-19 and so are potentially not proportionate. The same applies to inquiries about recent travel activities because, since 10 April 2020, the RKI no longer maintains a list of international high-risk areas or particularly critical regions in Germany, so information about an employee’s recent travel destinations no longer has any explanatory power.
Ultimately, employers have to decide on a case-by-case basis whether the disclosure of an infected employee’s identity to other persons is permissible. If such disclosure is limited to contact persons of the affected employee, and if the disclosure is necessary to take preventive measures, it is likely permissible. However, if protective measures for other employees can be taken without disclosing the identity, the disclosure of the identity has to be avoided.
4. Co-Determination Rights
Employers need to be aware that most of the actions that will be taken when preparing for business resumption, to the extent they affect employees, are subject to consultation with works councils and other employee representative bodies or specialist functions. Safety and health at work measures are subject to works council co-determination in accordance with Sec. 87 para. 1 no. 7 Works Constitution Act (Betriebsverfassungsgesetz – BetrVG). This does not only apply to the implementation of a pandemic plan (as set up by many companies in Germany for the first time only a few weeks ago) but also to business resumption plans, including the definition of specific rules of onsite conduct and the technical, organizational and personal measures to be put in place in order to mitigate the infection risk. The definition of rules of conduct for the employees during business resumption is typically subject to works council co-determination in accordance with Sec. 87 para. 1 no. 1 BetrVG as well. The implementation or use of electronic tools, such as thermal scanners, is subject to works council co-determination in accordance with Sec. 87 para. 1 no. 6 BetrVG. To the extent the works council refuses consent, the employer would have to initiate conciliation board proceedings (Einigungsstellenverfahren) and seek approval of the contemplated measures there. In our experience, works councils are rather cooperative these days, especially when it comes to reasonable and adequate measures that protect safety and health at work.
5. Managing Employees Working Remotely or Absent from Work
Both employees working from home and those not working (for different reasons) should be included in communication about the company’s efforts to maintain or create a safe working environment and prepare for a return to normal business processes. Employees, especially those who are more susceptible to infections than others or have members in their family household with pre-existing conditions or otherwise belonging to high-risk groups, may raise concerns for their safety at work. By including these employees in regular communication and keeping them up-to-date, they will be encouraged to discuss their concerns and develop sufficient comfort that returning to work is safe. In some cases, such discussions will lead to a joint decision to allow an employee to continue working from home. In other cases, employees can be offered more flexible working times (e.g., to avoid crowded public transportation during typical commute hours) or special protective equipment to take care of their special needs.
If employees are currently infected, they should certainly stay at home and not return to work until approved by a medical practitioner. Employers should coordinate with health authorities without delay and seek their guidance as to which measures the company should take to avoid a further spread of the disease to other employees, their families, or third parties, such as customers, suppliers or service providers. If infected, employees are deemed sick and will be entitled to continuation of remuneration by the employer for up to six weeks in accordance with statutory rules on continuation of pay in the event of sickness. If a health authority imposes an official quarantine order on the employee, the employee will be entitled to statutory compensation of lost earnings based on the German Infection Protection Act (Infektionsschutzgesetz – IfSG) for up to six weeks. Such statutory compensation needs to be paid out by the employer, who can claim reimbursement.
If employees were in contact with infected persons or start showing symptoms of an infection, their health status should be clarified by a medical practitioner first before they can return to work. In the meantime, they should be asked to work from home (if possible) or should otherwise be temporarily released from work.
In some cases, employees continue to be unable to work because of continuous closure of child care centers and schools. Subject to certain conditions, such employees are entitled to a statutory compensation of lost earnings for up to six weeks and up to a certain amount per month. After expiration of the six weeks, such employees may be able to bridge any remaining period of closure of day care centers or schools by taking vacation, using existing working time credits previously built up, or even building up a negative working time account balance (if permissible).
6. Headcount Planning
Despite the euphoria about the expected revival of the economy, at this point, most companies can only guess what the mid- and long-term impact of the coronavirus crisis will be for their businesses. Current short-time work schemes are expected to continue for a few more months, in most cases until the end of the year. By then, it will hopefully be more predictable how long it will take for business activities to get back to normal. Companies that do not see any light on the horizon will soon have to make a tough decision and start looking into potential headcount reductions. Larger layoffs may be time-consuming and costly. In businesses with works councils, consultations can take several months. If agreement on a balance of interests and a social plan cannot be reached, consultations may have to be continued in conciliation board proceedings. On that basis, smaller reductions in force, maybe even in combination with voluntary leaver programs, may be more efficient for employers and can help reduce the number of forced redundancies later. Employers should soon look into relevant thresholds and the process that needs to be followed.
For other companies, the coronavirus crisis may have caused a significant push for their business, and they may consider hiring. Given that many highly skilled and talented individuals have already lost or will lose their jobs over the course of the crisis, companies planning to hire may want to carefully watch the market and approach the right candidate when the time comes.
In summary, employers are well-advised to keep up with political and legal developments during these unprecedented times. At this stage, one of the biggest challenges for employers might be to organize their business processes and premises in a way that safety and health risks for employees and third parties are mitigated as much as possible. While there is good and useful guidance available, such guiding principles need to be applied to and translated into day-to-day business processes. This is time-consuming and, in many cases, will require input and consent from various stakeholders. While business resumption plans are made and measures are implemented, it is important to maintain a regular and effective communication with the workforce. Individual situations need to be addressed to take care of potential concerns about employees’ return to the workplace. Finally, employers need to carefully monitor their headcount and whether it is still in line with how the economy is expected to develop over the next months and years.
1 Besides the Federal Ministry of Labor and Social Affairs, also the European Agency for Safety and Health at Work (EU-OSHA) has published non-binding but very helpful guidelines aiming to help employers and workers to stay safe and healthy in a working environment impacted by COVID-19 (https://oshwiki.eu/wiki/COVID-19:_Back_to_the_workplace_-_Adapting_workplaces_and_protecting_workers).
2 “RKI” stands for Robert Koch Institute, which is the government’s central scientific institution in the field of biomedicine. It is one of the most important bodies for the safeguarding of public health in Germany.
5 For more details, see https://www.baua.de/EN/Topics/Work-design/Risk-assessment/Basic-knowledge/What-is-a-risk-assessment/What-is-a-risk-assessment_dossier.html?pos=1