Employers' obligations in relation to Corona

Thing-it: Professor Lembke, the coronavirus pandemic must have kept you busy as an employment law expert.

Lembke: That's true. We are dealing with a large number of questions about corona and its consequences. At the beginning of the pandemic, the main focus was on what restrictions were in place in Germany for the public, businesses and travel. During the lockdown, questions then arose in particular about the introduction of short-time working, followed by ensuring business continuity, for example through forms of work such as working from home or mobile working, i.e. working from a location of one's choice. In view of the constantly changing infection figures at home and abroad, companies are now concerned with how a second lockdown can be avoided and what obligations companies have towards their employees and customers to protect them from coronavirus infections.

Thing-it: What obligations do employers have towards their employees? The social distancing rule and the wearing of face masks are now commonplace. Does that also apply in the company?

Lembke: The coronaviruses that cause the respiratory disease known as "COVID-19" are mainly transmitted by droplet infection. Infection therefore occurs primarily via airborne droplets (aerosols) from infected people to other people via the mucous membranes of the mouth, nose and eyes. This consideration gives rise to the distance rule that also applies in companies, according to which employees should keep a distance of at least 1.5 m from other employees or customers. The employer must organize the offices accordingly and arrange the furniture accordingly. In addition, sufficient ventilation must be provided and internal traffic routes must be organized in such a way that people do not congregate. If the distancing rule cannot be observed, alternative measures must be taken, such as covering the mouth and nose, partitions, etc. As coronavirus infection is also conceivable via contaminated surfaces and hands, employers are also obliged to ensure that workplaces are sufficiently cleaned and hygienic, e.g. to provide soap, paper towels and liquid disinfectant.

Thing-it: Where are the obligations regulated? Where can companies find out what they have to do?

Lembke: The legal starting point is the employer's duty of care. As early as 1896 - as is still the case today - Section 618 (1) of the German Civil Code (BGB) stated: "The person authorized to provide services must set up and maintain rooms, devices or equipment which he has to procure for the performance of the services and regulate services which are to be performed under his order or direction in such a way that the person obliged is protected against danger to life and health as far as the nature of the service permits." - In short: The employer is obliged to take the necessary occupational health and safety measures, taking into account the circumstances that affect the safety and health of employees at work (Section 3 (1) of the Occupational Health and Safety Act/ArbSchG). To this end, the employer must carry out a risk assessment, taking into account the co-determination rights of the works council, to determine which occupational health and safety measures are necessary in relation to the respective workplace. With regard to the coronavirus pandemic, employers are well advised to observe the SARS-CoV-2 Occupational Health and Safety Standard of 20.4.2020 (C-ASS) [1] issued by the Federal Ministry of Labor and Social Affairs (BMAS). This specifies which measures to protect employees from the coronavirus correspond to the state of the art in technology, occupational medicine and hygiene as well as other proven occupational science findings. It is a kind of "soft law" and describes the measures that the employer must take into account when drawing up a company action plan. It also contains the obligations outlined above (distancing rule, obligation to clean and maintain hygiene, requirement to reduce contact, etc.).

Thing-it: In addition, the so-called SARS-CoV-2 occupational health and safety rule of the occupational health and safety committees at the BMAS (C-ASR) was published on 20.8.2020. What's it all about?

Lembke: The C-ASR [2] specifies the occupational health and safety standard C-ASS on the basis of the ArbSchG and the occupational health and safety ordinances and contains detailed explanations of the protective measures to be taken in the company with regard to corona. If these specifications are complied with, the employer can assume that the requirements of the ordinances are met. Depending on the industry, regulations of the statutory accident insurance institutions for protection against corona [3] may also be relevant. Apart from this, the infection protection standards may also have to be observed, in particular the relevant ordinances of the federal states based on the Infection Protection Act. Although they generally apply to the public sector, they may also contain regulations for companies.

Thing-it: What are the risks for companies if the health and safety measures described are not adhered to?

Lembke: Consequences under civil law, public law and criminal law are conceivable. Under civil law, there is a risk of employer liability for damages if an employee falls ill with COVID-19 or dies after working in the company. However, as the employer is solely responsible for the costs of statutory accident insurance in accordance with SGB VII, Section 104 (1) SGB VII contains a liability relief for the employer: According to this, employers are only obliged to compensate their employees and their relatives and survivors for personal injury caused by an insured event "if they have intentionally caused the insured event". Insured events are accidents at work and occupational illnesses. At the beginning of the coronavirus pandemic, however, the accident insurance institutions denied that a coronavirus illness caused in the workplace could be an occupational accident on the grounds that the pandemic represented an uninsured "general risk". This assessment has since changed, albeit depending on the respective incidence of infection [4]. If the incidence of infection should spread again, it is conceivable that the accident insurance institutions will not recognize a corona infection in the workplace as an occupational accident and that the limitation of liability for employers described above will not apply.

Thing-it: And what other legal risks are there?

Lembke: The supervisory authorities responsible for occupational health and safety can obtain information from companies, inspect business premises and order measures, particularly with regard to compliance with coronavirus protection measures. This can go as far as prohibiting certain work or the use or operation of certain work equipment (see Section 22 ArbSchG). Failure to comply with an order can be punished as an administrative offense (§ 25 para. 1 no. 2 ArbSchG) and, in the event of persistent repetition, even as a criminal offense (§ 26 no. 1 ArbSchG). If employees fall ill or even die, investigations for negligent bodily injury (§ 229 StGB) or negligent homicide (§ 222 StGB) may also be brought against those responsible if they have not observed and implemented the occupational health and safety regulations described.

Thing-it: As everyone has heard, the coronavirus pandemic has brought with it a considerable boost in digitalization. In your opinion, what role does the use of IT-based solutions play in fulfilling employer obligations in relation to coronavirus?

Lembke: Digital applications have always played a major role in business practice. Just think of working time recording or automated access controls. All of this could now be refined, e.g. to electronically record the contact details of employees and external persons and the time of entry/exit from the company and to facilitate tracking in the event of suspected coronavirus. Other use cases include the contactless fever measurement provided for in the C-ASS, the IT-controlled organization of room occupancy, ventilation and disinfection of rooms, etc. From an employment law perspective, the use of such digital tools certainly raises questions of employee data protection and works council co-determination, which must be taken into account. The positive aspect is that a works agreement concluded with the works council can also be the legal basis for data processing when using IT solutions (see Section 26 IV BDSG, Art. 88 GDPR). In this respect, data protection and works constitution law are intertwined and it is worthwhile if the parties to the works agreement agree on good solutions.

Thing-it: Have there already been any court decisions on coronavirus measures taken by companies?

Lembke: Yes, various. For example, we recently successfully represented a company in preliminary injunction proceedings in which the works council - for some unknown reason - opposed the option offered by the employer to work remotely on a voluntary basis. A decision by the Wesel Labor Court dated 24.4.2020 (case no. 2 BVGa 4/20) is also interesting. There, it was decided that the works council has a claim for injunctive relief against the employer for violation of its co-determination rights pursuant to Section 87 (1) Nos. 6 and 7 BetrVG if the employer now also uses the surveillance cameras installed at its premises on the basis of a works agreement for the purpose of monitoring employees' compliance with the coronavirus distancing rules without the consent of the works council.

Thing-it: This shows that dealing with the works council is very important. In your experience, what is important here?

Lembke: Experience has shown that works councils are open to sensible solutions that make working life easier and are cost-efficient. However, if the interests of the employees are affected, they want to understand in detail how the IT solutions used work and whether there are any equally suitable solutions that are less disruptive. This sometimes requires the IT service provider to be present during negotiations and to present and explain its product. This creates transparency and trust.

Thing-it: Professor Lembke, thank you very much for this interesting interview.

References

Available at https://www.bmas.de/SharedDocs/Downloads/DE/PDF-Schwerpunkte/sars-cov-2-arbeitsschutzstandard.pdf?__blob=publicationFile&v=1.

Available at https://www.baua.de/DE/Angebote/Rechtstexte-und-Technische-Regeln/Regelwerk/AR-CoV-2/pdf/AR-CoV-2.pdf?__blob=publicationFile&v=6.

Available at https://www.dguv.de/de/praevention/corona/informationen-fuer-beschaeftigte/index.jsp.

Cf. https://www.dguv.de/landesverbaende/de/medien/faq/aktuelles_corona_dav/index.jsp.