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Occupational Safety in the Corona Crisis: What Does the New SARS-CoV-2 Occupational Safety Regulation Mean for Employers?
1. What is the core of the regulation?
In addition to other requirements for occupational health protection, including the obligation to provide employees with medical face masks under certain circumstances, the core element of the regulation is the employer's obligation to enable the provision of work management in the home office.
2. What must the employer do?
The employer must offer its employees, insofar as they perform office work, to perform their tasks from home. For reasons of proof, this offer should be documented, for example by email. Furthermore, the employer will have to provide the basic technical equipment (notebook, cell phone, etc.). However, the regulation does not stipulate that the employer must provide a fully equipped workplace (including office furniture), nor that employees must accept the offer. Nor is the employer entitled on the basis of the ordinance to transfer employees to the home office.
3. Can the employer refuse?
The employer does not have to fulfill its obligation to make an offer if there are compelling operational reasons to the contrary. Neither the ordinance nor the legal materials specify when this should be the case. Taking into account the wording of the ordinance, any office work that cannot necessarily only be performed from the office will be suitable for home office work, with the consequence that the employer must fulfill its obligation to offer such work; this will apply in particular to simpler clerical and/or telephone work.
4. What are the consequences?
The ordinance itself does not provide for any sanctions. Only when the relevant occupational health and safety authority of a state specifically orders compliance with the ordinance can a fine be imposed in the event of a violation. In view of the statements made by the Federal Minister of Labor Heil, this escalation seems remote at present - but it is important to keep this in mind. In addition, the employer will have to weigh up "soft" sanctions, for example in the form of atmospheric disturbances within the workforce or negative media coverage.
5. Is there anything else to consider?
The regulation does not exempt employers from complying with other legal requirements. In particular, compliance with data protection and IT security must be ensured when working in a home office - employees should be reminded of this separately. For reasons of proof, it is advisable to document the information, for example by email.
For more information on legally compliant home office design, see our article.
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