By Jessica Jacobi, Firm:  Kliemt.HR

On 10 August 2020, Germany’s Federal Ministry of Labour and Social Affairs (‘BMAS’) announced a new Covid-19 occupational health and safety rule. The new rule supplements the Covid-19 occupational health and safety standard that was previously published in April.

The purpose of the new occupational health and safety rule is to provide employers with a ‘state of the art’: if employers implement the technical, organisational and personal measures proposed in this rule, they can assume that they are acting in a legally compliant manner.

Content of the new occupational health and safety rule

The new BMAS rule is 23 pages long and is divided into a general and a special section. The first, general part describes the scope of application of the rule and provides definitions. It also points out employers’ obligation to review their existing risk assessment and occupational health and safety measures against the background of the epidemic and the BMAS health and safety standard published in April, and to update them if necessary.

The general section also includes fourteen protective measures described in detail, including the following:

  • The new rule continues to refer to the minimum distance of 1.5 meters between persons. This distance can be maintained by modifying the furniture, including partitions, and by using other suitable rooms. In this context it is interesting to note that so-called ‘short-term contacts’ are excluded from this. In the definitions, a short-term contact is described as a face-to-face contact between two persons, which lasts less than 15 minutes in total. According to the current state of knowledge and the latest information provided by the Robert Koch Institute, such short-term contacts present only minor risks of infection.
  • The rule contains updated instructions for the proper ventilation of rooms in the workplace. The starting point for this is the current state of knowledge according to which increased ventilation can reduce the concentration of virus-contaminated aerosols in the room air. The new occupational health and safety rule contains the helpful hint that the quality of ventilation can be checked indirectly by measuring the carbon dioxide concentration in the used air. This is cheaper and less complicated than directly measuring the aerosol concentration in the air. According to a recent study by the Federal Environment Agency, the otherwise usual value for CO2 concentration of up to 1000 ppm (parts per million) should be lowered during times of epidemic if possible.
  • With regard to business trips, it remains the case that these must be limited to what is necessary for the performance of the work. When vehicles are shared, the minimum personal distance must be observed and the number of persons must be limited accordingly. Where this is not possible, partitions must be installed or mouth-and-nose coverings must be worn. The rule of 1.5 meters distance between people must also be observed during meetings, if necessary by reducing the number of people in meeting rooms. In connection with meetings, reference is again made to the specifications on ventilation.
  • Another general rule is that work equipment and tools should, if possible, only be used by one person at a time to prevent smear infections. If this is not possible, all work equipment should be cleaned with commercially available household cleaners before passing them on. This applies in particular to surfaces where smear infection is possible, such as table tops, IT equipment, telephone receivers, steering wheels and tools. Disinfection of surfaces instead of using standard household cleaners is expressly not considered necessary.

In addition to these and other general rules, the ‘Special Part’ of the new occupational health and safety regulation contains concrete specifications for protective measures on construction sites, in agriculture and forestry, for delivery and transport services and, finally, for worker accommodation.

Further practical tips

When introducing and amending corona-related rules of conduct, the co-determination rights of the works council must of course be taken into account. However, it should also be noted here that the courts have recently held that an employer's request to the workforce to work temporarily from home for corona reasons does not constitute a change in operations within the meaning of the statute governing works councils.