What risk mitigation efforts should the prudent employer take before employees return to the workplace?
Employers have a duty to take reasonable care for the health and safety of their employees in order to ensure a safe workplace. Due to the requirements of occupational safety and infection protection, an employer must ensure the following in the current Covid-19 crisis:
- Establish a hygiene regime taking into account the nature of the business and the individual workplaces to ensure a safe workplace (e.g. minimizing contact between the employees, guarantee a high hygiene standard, offer the use of masks)
- Provide information, training and supervision to the employees to ensure the health and safety at work (e.g. instructions to maintain a distance of at least 1.5 meters, prohibiting coming to work sick; communication of hand washing rules)
- Carry out a risk assessment. The risk assessment should identify the risk, decide how likely it is that someone will be harmed and require action to be taken to eliminate the hazard, or, if that is not possible, control the risk (e.g. sending home employees who feel sick). The risk assessment should also be carried out with the assistance of a company doctor who advises the employer on the preparation, the implementation and the ongoing improvement process to ensure that the risk assessment is conducted in line with the occupational health and safety standards. However there is no legal obligation to obtain the company doctor’s consent to the actions to be taken. The risk assessment must take into account the organisation of work tasks, the working time and the integration of home office employees into company processes as well as the additional psychological stress factors resulting from the epidemic situation.
The website of the German Ministry of Labor and Social Affairs provides guidance regarding occupational safety in the time of COVID-19 and can be reviewed to keep up with the medical and governmental guidance (information available in various languages).
Who should be involved in the decisions to return to the workplace?
One of the key aspects in determining the risk is to ensure that you have the correct team in place to review the proposals for implementing the return to the workplace. HR, Legal, IT and business leaders should all be involved. The level of steps required will depend on the nature of the business. Where a works council is established, these employee representatives must be involved for certain topics, e.g. when implementing information and prevention measures, for matters related to occupational health and safety protection and for matters regarding the company code of conduct. The employer should also consult occupational safety specialists and medical officers to ensure compliance with the infection control measures.
Works councils should be consulted as soon as possible when implementing new measures in order to maintain an open dialogue on any concerns and ensure that its co-determination rights are respected.
What can the prudent employer do to ensure physical distancing in terms of the work space?
The German Government guidance is that at least 1.5 metre social distancing should be maintained, where possible, between employees, customers and visitors. Where this is not possible, other safety measures need to be taken, e.g. installing transparent protective walls or wearing a face mask.
Under the current Occupational Health and Safety Ordinance of the Federal Ministry of Labor and Social Affairs, employers are obliged to offer their employees the right to work from home wherever this is possible. The Ordinance is currently limitedin place until 15 March 2021. However, working from home still requires the employee’s approval and ideally a corresponding contractual agreement between the employer and employee. Therefore, employers cannot force their employees to work from the home if they did not enter into a respective home office agreement.
Where a workplace presence is still required, the occupancy in confined space work areas must be reduced to be in line with the COVID19 occupational health and safety standards. If this is not possible and if the minimum safety distance cannot be maintained, employers must provide their employees with medical face masks or FFP2 masks.
Access of external individuals should be reduced to a minimum. If possible, their details as well as their entry and leave time should be documented. Changes in the arrangement of furniture and the use of other suitable areas and rooms are also appropriate measures to ensure physical distancing.
It will also be important to check what sub tenants/contractors/outsourced services are doing and make sure that it protects employees.
Where employees violate the rules for social distancing, an employer should send the employee home immediately and consider disciplinary measures, in particular a written warning.
- Reach out to your employees a couple of days before re-opening the office, e.g. via email, before they return to the office to familiarize them with the social distancing terms.
- Place information boards with the social distancing rules or floor markings around the office to ensure that the employees comply with them.
- A manager or someone from the executive team should be designated as a contact person in case any questions arise.
What can the prudent employer do to ensure physical distancing in temporal terms?
In order to ensure social distancing, an employer should consider changes in the working hours and shifts (e.g. by implementing staggered starting times, new shift requirements, splitting the workforce into teams etc.). The current German Occupational Health and Safety Ordinance specifically suggests that the workforce should be split into small teams in companies with more than ten employees. The contact between the individual teams should be reduced to the minimum necessary for the operation.
It is advisable to have guidelines for the use of meeting and conference rooms as well as for coffee and communication areas in place and also to define rules for visitors.
This may lead to various employment issues – including changes to employment terms (different shifts or working time) and obligation of a continued pay during times off. Also co-determination rights of the works council have to be considered before taking any measures, e.g. when changing the end and beginning of the daily working hours or breaks and implementing new codes of conduct for the use of common areas in the company.
What protections should the prudent employer consider implementing, in addition to physical distancing?
Employers must in particular take measures to reduce the number of unprotected contacts between persons and the concentration of airborne viruses in the working environment as far as possible. Employers need to consider additional cleaning requirements, providing personal protection equipment (e.g. medical face masks, gloves) and screens. In addition, employers should also consider checking ventilation systems and air conditioning systems.
If the distance rule (1.5 metres) cannot be observed for work-related reasons and technical measures (i.e. partitions between workplaces cannot be implemented), the employees must wear a medical face mask for mutual protection. The employer has the obligation to provide the medical face masks.
Where possible, work equipment should only be used by one employee and cleaned regularly. Otherwise, employees must be provided with suitable protective gloves. Company cars need to be equipped with utensils for hand hygiene, disinfectant, paper tissues and garbage bags.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
If considering carry out any health screening on employees there are various issues that need to be considered.
- Employee’s medical information is a special category of data under the GDPR and there are therefore strict conditions that apply as to when the data can be collected and processed.
- From a data protection law perspective, we recommend not conducting temperature screenings on employees unless specific reasons exceptionally require such a measure. The German data protection authorities are of the opinion that temperature screening is not necessary as a high temperature does not necessarily indicate infection by Covid-19.
- According to a published resolution of the Conference of the Data Protection Authorities in Germany dated 10 September 2020, individual temperature testing of employees is permitted under data protection law, depending on the individual case, while general automatic temperature testing and the storage of infrared camera recordings are not. According to the resolution, the processing of personal health data is not prohibited if it is necessary for the assessing an individual’s ability to work. The processing would have to follow the central principles, including purpose limitation, data minimization and storage limitation. In addition, the conditions and guarantees mentioned in Art. 9 para. 3 GDPR, Sec. 22 para. 1 number 1 b) German Data Protection Act must be fulfilled. However, even then, an individual’s temperature test should only be carried out by a company doctor. The company doctor should only inform the employer of the employees whose test has resulted in them being denied access to the company’s premises.
- If the employees’ presence at the workplace is required, German data protection authorities recommend requesting the employee to consult a doctor if there are indications that he or she is experiencing symptoms of Covid-19.
- According to a guidance issued by the Hamburg State Data Protection Commissioner (der Hamburgische Beauftragte für Datenschutz und Informationsfreiheit) temperature screening may be allowed in specific circumstances requiring such measures, e.g. in working environments with particularly close contact or in institutions that are essential for the acute care of the population, such as hospitals or medical device manufacturers as an exception due to the current situation. Screening employees might also be considered where other employees on a site have been tested positive for Covid-19. In these exceptional circumstances, however, the employer is only allowed to record and retain the fact that the employee has been asked to refrain from working in the office for a certain time period as a result of the initial check; the employer may not retain the results of the check itself. In other words, the storage of specific information such as symptoms of illness or body temperature is not permitted. Employees can be asked to voluntarily conduct a temperature screening by themselves i.e. without showing or disclosing the result of the screening to the employer or the employer’s staff.
- There is no German legislation or established case law regarding the obligation of employees to participate in COVID-19 testing by their employer. In our legal opinion, however, testing employees for COVID-19 without cause on a regular basis and without the consent of the employee is inadmissible for reasons of data protection and due to a disproportionate encroachment on the personal rights of employees. Only in exceptional cases, like employees employed in hospitals and care facilities, regular testing may be necessary and permissible. Implementing mandatory testing would therefore not create any obligation of employees to participate in the testing.
- Requiring an employee to take a COVID-19 test, and thereby collecting information about whether the employee has been infected by the virus, will also be deemed to be processing health data (which is a special category of personal data) under the GDPR and the Federal Data Protection Act.
- Employer must ensure that they have a valid legal basis under Article 9 of the GDPR to process health data. The most appropriate legal basis for employers to consider would be that the processing is necessary in order for the employer to meet its employer obligations (Article 9 (2) (b) GDPR and Section 26 (3) FDPA). One of these obligations is to ensure a safe and secure working environment, as a part of the employer’s duty of care. The challenge lies in determining whether COVID-19 tests are “necessary” to meet the employer’s obligations.
- The German data protection regulators have not issued any guidance on COVID-19 tests. Since COVID-19 tests are regarded as inadmissible under employment law due to the following reasons, it will be difficult for employers to argue that the COVID-19 tests are necessary because:
- A negative COVID-19 test result only represents a snapshot and does not provide reliable information whether the employee is infected when he/she enters the office.
- COVID-19 testing of this nature has not been deemed ‘necessary’ by the German Government since only individuals arriving in Germany are required to take a COVID-19 test. It is therefore difficult to argue that this type of testing is justified given there is no governmental regulation requiring individuals to take a COVID-19 test.
- If an employer operates largely a white collar environment where employees do not generally need to be in close contact with one another in order to do their jobs effectively, there are alternatives for maintaining a safe and secure working environment without having to resort to these tests (e.g. social distancing, working from home, etc.).
- All of these factors make it difficult to justify the mandatory taking of COVID-19 tests by employees.
- The above mentioned considerations would also apply if the testing was administered by a third party, and the employer only requires the employee to confirm the third party has issued a “negative” result, i.e. the employer cannot require the employee to provide such a confirmation and such a confirmation would not be necessary since the employee is obliged (as part of ancillary duty resulting from the employment relationship) to inform the employer if he/she has been infected by COVID-19.
Before implementing any testing, co-determination rights of employee representatives have to be observed as all health protection measures and orderly conduct in the company are subject to co-determination in Germany.
- Consult with employees on their views regarding medical screenings in the office to maintain an open dialogue.
- Keep up to date with government guidance on medical testing.
- Get the works council involved at an early stage to discuss concerns and to prepare employees before they return to work.
What are the requirements regarding travel – either to or from the office or business travel?
An employer must assess the risk to the safety and health of the employees and take measures based on this assessment as well as identifying and taking additional measures where necessary.
An employer should encourage the employees to continue to work from home. If this is not possible due to the nature of the business, an employer should urge the employees to observe recommendations regarding safety and hygiene, such as:
- Avoiding public transport (employers might need to expand parking areas, free parking tickets etc.)
- Avoiding peak hours (employers might need to move shifts)
- Keeping the minimal physical distance (1.5 metres) and wearing face masks and gloves while using public transport.
- Limiting the number of contacts when traveling and keeping track of the people met (e.g. customers, clients, suppliers), to be able to trace contacts to (potential) Covid-19 cases.
- Trying to avoid busy areas.
- Doing a Covid-19 test when returning from travels (in Germany it is now mandatory for travelers arriving from so-called ‘risk areas’. For travelers from ‘non-risk areas’ there is the possibility to do a test voluntarily.)
An employer should reduce business travel of the employees to a minimum and advise employees to conduct virtual meetings where possible. Vehicle sharing during business trips must also respect the minimum distance or – where not possible – take other personal protection measures such as wearing face masks.
- Discuss with employees if they have concerns travelling for business purposes.
- Keep up to date with government travel restrictions.
How does the prudent employer decide which employees should return to the workplace?
Employers will need to ensure that they do not adopt discriminatory selection criteria in determining who should return to work.
Among a group of “equal” employees in terms of gender, age and health, an employer should select individuals proportionally and appropriately to consider who should return to work (e.g. considering the duration of the commute to work, childcare obligations etc.).
- Discuss with employees their concerns about returning to the workplace.
- Consult with medical officers on concerns about certain employee groups returning to work.
What if an employee refuses to return to the workplace?
Employees are obliged by their contractual obligation to perform work at their place of work (unless otherwise contractually agreed) and therefore they have to return to their workplace, if the employer requires them to. Otherwise, the employee breaches his/her contractual obligations.
Also, the employee's entitlement to continued payment of remuneration ceases to apply if the employee is absent from work despite their ability to work.
Only in exceptional cases, namely if no adequate protective measures are in place and it is therefore unreasonable for the employee to appear at work because of the risk to his health, can the employee refuse to return to work.
- If employees refuse to return to the office it may be helpful to discuss their concerns with them and, also a member of the works council, to resolve any issues they have.
What other considerations should the prudent employer be thinking about at this time?
When particularly vulnerable employees return to work, a review and updating of the risk assessment should be carried out beforehand, taking into account specific risks for these employees, and then paying particular attention to compliance with the protective measures.
Employees returning to work after a COVID 19 illness may have a special need for support in coping with work-related physical and mental stress due to a possibly severe course of the illness. The employer should take this into account. If the employee has been unable to work for more than six weeks in the last twelve months, a so called 'company integration management' must be carried out with the employee, meaning the employer tries to find solutions together with the employee to reintegrate him or her to the work place.
A number of employers in Germany are using the Covid-19 crisis to conduct a survey about working from home to learn about the employee’s preferences. The outcome of such survey also helps employers to establish and adapt a reasonable return to work concept.
What are the safety and employment issues for consideration regarding the vaccines?
Compulsory vaccination represents a considerable encroachment on the fundamental right to physical integrity. There is currently no specific authorization for mandatory COVID-19 vaccinations. Theoretically, however, this could be introduced in the form of an amendment to the law, analogous to the compulsory measles vaccination that has been in place since March 1, 2020, or issued in the form of a legal ordinance in accordance with Section 20 (6) of the German Infection Protection Act (Infektionsschutzgesetz – IfSG).
In line with previous case law of German social courts (cf. BSG, 31.01.1974 – 2 RU 277/73), the Federal Labor Court (Bundesarbeitsgericht – BAG) states that measures to maintain or restore health are to be applied to the sphere of private life, even if they serve to maintain the workforce. Therefore, vaccination remains a private matter. Employees who do not have themselves vaccinated are in principle not threatened with any consequences under German labor law. The employer remains obliged to continue to employ them. He cannot sanction his unvaccinated employees by, for example, refusing them access to the cafeteria, as this would contradict the prohibition of measures under Section 612a of the German Civil Code (BGB). It can be assumed that German labor courts will also adopt these principles as a basis in the current COVID-19 pandemic.