Germany update: Occupational health and safety in times of the corona virus – The employer’s duty of care

The effects of the corona pandemic remain omnipresent and continue to determine not only our daily lives, but especially our working lives. The employer in particular is constantly faced with new challenges.

Within the framework of the employment relationship, the employer has special duties of care and protection with regard to the health and life of his employees. The employer must ensure that his employees are protected from occupational health hazards at the workplace and that the risk of infection is as low as possible. If the employer violates this obligation, he is liable for damages. The scope of this duty of care as well as the admissibility under labour law of some infection prevention occupational health and safety measures are the subject of this article.

1. Can the employer unilaterally order home office in times of the corona virus?

To prevent contact infections in the workplace, many employers have chosen to let their employees work from home during the corona pandemic. At times, the SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV) even provided for an employer’s home office obligation as a starting point. But what if the employee refuses to work from home?

In principle, the employer can determine the content, place and time of the work performance at his reasonable discretion by means of his management right, unless otherwise agreed in an individual contract. If a specific place of work has been agreed in an employment contract, an employer’s order from home office is therefore ruled out from the outset. But even in the event that no specific place of work or even a transfer clause has been regulated in the employment contract, the employer cannot simply order home office against the will of the employee. In principle, the employer is not entitled to dispose of the constitutionally protected living area of the employee concerned.

The same must also apply in the current exceptional situation of the pandemic. A unilateral arrangement of the employer’s home office is therefore generally not possible. Rather, this requires a contractual agreement with the employee concerned or a works agreement. Here, however, various co-determination rights of the works council must be observed.

2. Can the employer introduce a test obligation in the workplace?

So far, there is no legal obligation to test at the workplace. In the Corona-ArbSchV, only the employer is obliged to offer free self-tests for his employees at the workplace, unless they work exclusively from home. Therefore, the question arises as to whether the employer may also introduce a test obligation to contain the risk of infection in the workplace.

According to the Robert Koch Institute (RKI), the self-tests are suitable for detecting infection with the corona virus and therefore generally represent a suitable means of infection prevention in the workplace. However, the performance of such a self-test is accompanied by an interference with the physical integrity and the general right of personality of the employees, so that the interests of the employees worthy of protection are also affected during the testing. In view of the short duration and intensity of the intervention in physical integrity, however, it will be possible to consider a test obligation at the workplace to be legally permissible.

However, since testing is also accompanied by the collection of sensitive personal (health) data, it will be necessary to deny a test obligation without cause that affected all employees. Mandatory tests can therefore only be required by the employer in the case of a concrete hazard potential, e.g. in the case of returnees from a risk area or in the case of relevant symptoms. In this respect – e.B. with regard to the country of origin when returning to travel and relevant symptoms – the employer will also have to be granted a right to ask questions by virtue of the employee’s duty of loyalty. In principle, the obligation to test can be introduced by the employer by virtue of his right of direction. If a works council exists, its right of co-determination must be observed.

3. Can the employer introduce an obligation to use the Corona Warning app at the workplace?

The Corona Warning app also serves to contain the infection process and is intended in particular to facilitate the tracking and breaking of infection chains in the event of contact with infected persons. So far, there is no legal obligation to use it. However, the effectiveness of the Corona Warning app is largely related to the number of its users. It is therefore questionable whether the employer can introduce an obligation to use the Corona Warning app at the workplace.

Such an obligation to use at the workplace would only be considered from the outset for devices made available for business purposes. Because the employer has no right to dispose of the private mobile phones of his employees. But even with company mobile phones, one will probably have to deny a duty of use. Through the Corona Warning app, sensitive personal data of individual employees is collected and further processed. However, the processing of such data is only permitted under data protection law if it is necessary for the execution of the employment relationship. Such a necessity is probably to be denied in view of other less intensive, but nevertheless effective protective measures such as regular ventilation, mouth-nose covering and keeping a distance.

4. Fazit und Ausblick

The present legal assessment is based in particular on the current legal and infection situation in Germany. Whether the courts will also follow this assessment remains to be seen in the coming period. However, there is no doubt that the employer must take appropriate protective measures as part of his duty of care in order to keep the risk of infection for his employees in the workplace as low as possible. But even this duty of care has legal limits that must be adhered to in practice.

By Dominik Gallini, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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