In the fight against the further spread of the Corona virus, the federal government issued the so-called Corona Occupational Health and Safety Ordinance on January 21, 2021, which has come into force on January 27, 2021, and remains effective until March 15, 2021.
As early as 2020, the German Federal Ministry of Labor and Social Affairs (BMAS) had issued an "occupational health and safety standard" that regulated, among other things, specifications on distances, hygiene, etc. In light of the changes in the incidence of infection, the new ordinance now regulates the following core topics:
Employees cannot sue for the above-mentioned measures - not even the "right to work from home ". In addition, the offices for occupational safety and health can carry out inspections; however, they cannot impose fines for violating the ordinance. In order to do so, they would first have to issue binding measures by way of an administrative act; only in case of a (repeated) violation of these requirements can the labour protection offices then issue fines.
The legislator's requirement to update the risk assessment is more likely to be an appeal to the employer and the works council side (here lurks an enforceable right of co-determination of the works council); agreement on the methodology of a risk assessment and its implementation is unlikely to be possible within the envisaged term of the regulation.
What is unmistakable is the call for all activities that do not have to be performed at the company for compelling operational reasons to be shifted to the "home office." Employers here
So it is not just a mere appeal. At least, however, the legislator clarifies in the explanatory memorandum that employers - for the duration of this ad hoc regulation - are not forced to set up telecommuting workplaces, i.e. to purchase complete office furniture etc. for the employees.
Even with the other regulations - limiting the use of rooms, etc. - the desired results are clearly spelled out and employers will do well here to try their best to avoid multiple uses of rooms.
The regulation itself makes it clear that employees cannot be forced into the „home office“ against their will; moreover, in practice there is another hurdle to be considered for most of the measures mentioned here - works council involvement. Via Section 87 (1) No. 7 BetrVG, the works council has a weighty say in the implementation of most of the measures. This includes, in particular, the distribution of working hours desired by the legislator, which in most cases is likely to contradict existing works council agreements and shift schedules. In fact, employers will hardly be able to reach a settlement here by mid-March 2021 against the will of the works councils. Employers must therefore decide how to deal with any refusal by works councils to approve changes in working hours and spatial transfers:
As a catch-all regulation, on the one hand, the regulation provides for the obligation of the employer to provide the employees with (specific) mouth-nose coverings and, on the other hand, the employees are also obliged to wear the "masks".
We are already seeing that in some companies the regulation has no impact at all because the measures now required by law have long since been implemented. In other companies, however, the fatigue of employees and works councils to put up with home office and other restrictions ("rotating shifts" for work groups) is becoming very apparent. In view of the (for the time being) short time horizon of the regulation's term, the willingness of employers to accept the costs of conciliation board proceedings for this is also dwindling.
The next exciting questions, e.g. about compulsory vaccination for those working in nursing and the medical sector and the consequences of any refusal to vaccinate (unpaid leave, dismissal) are just around the corner and will keep you and us on our toes.