3. Health and Safety Measures
Requirements mandated by law or any official guidance.
Under the German Safety and Health at Work Act, employers are obligated to assess the risks to the safety and health of their employees in the workplace and take the necessary measures based on this assessment. In the framework of pandemic preparedness, employers have to identify and take additional measures where necessary. More information can be found about this topic, e.g. in the National Pandemic Preparedness Plan on the website of the German Robert Koch Institute, a well-recognised German institution.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Typical measures include increased possibilities for telework on the one hand and distance rules and improved hygiene at the company premises on the other hand (e.g. recommendations on frequent hand washing, providing disinfectants at the workplace, etc.). It is recommended to keep a distance of 1.5 meters between employees and customers. If and where such distance cannot be maintained, the employer must ensure protection by other means (e.g. face masks, workplace modification, etc.). The employer can order the employees to wear face masks, but individual employees may refuse in case of unreasonable strain, e.g. in case of asthma.
In general, the employer does not have the right to ask employees about any specific health related questions. However, in case of a coronavirus diagnosis, the employer may request information regarding this so that he can fulfil his duty to protect the health interests of the other employees. Precautionary measures, such as checking the employee’s body temperature, currently require the consent of each employee, as such measures constitute a processing of personal data. Also, the works council may have a right of co-determination. Employers normally may send employees home in order to protect the health and safety of other employees in the workplace. However, the employee being sent home is entitled to continued payment of remuneration.
