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Returning your workforce: Checklist of regulatory considerations

05 June 2020
With the relaxation of measures, employers are faced with the increasing pressure of meeting their responsibilities to ensure the health of their employees.

"Even in the pandemic, we want to make it possible for industry and medium-sized companies to work as safely as possible. Employers have a special responsibility for their employees to protect them from infections," said the German Chancellor and the heads of the federal states' governments on May 6, 2020, in a resolution to further relax measures to contain the COVID 19 pandemic. 

There are new legal requirements that must be observed when reopening a business. Employers must take necessary protective measures for their employees. Protection begins with comprehensive education about the risk of Coronavirus infection and the correct hygienic behaviour.

In order to implement protective measures in the best possible way, employers should:

  1. review and implement all relevant government regulations;
  2. review and update your COVID-19 risk assessment in light of the information below; 
  3. keep up to date with the changing regulations and update your risk assessments on an ongoing basis.

In practice, this results in a number of key questions for companies, which will be answered below:

1. Where your employees are based in Germany makes a difference

The regulations in the federal states differ and can change frequently within a very short time period. Differences may also exist due to different local infection situations. Companies should always check and implement the regulations of the respective locations. The regulations and general rulings that apply in your region can be found on the page of your federal state > Following are two examples: 

Berlin 

Legal basis >


Hygiene procedures: § 2 Abs. 1 S. 1 SARS-CoV-2-EindmaßnV 
"In all operations, facilities and offers regulated in the following, the relevant recommendations of the Robert-Koch Institute for infection protection in their respective versions must be taken into consideration and the requirements of the respective labour protection authorities as well as effective protective regulations for personnel, visitors and customers regarding hygiene must be observed."

§ 2 Abs. 1 S. 3 SARS-CoV-2-EindmaßnV
"This is to be ensured in particular by maintaining a distance of at least 1.5 m from other persons and an intensified cleaning and disinfection regime."

Bayern

Legal basis >
  

Hygiene procedures: § 12 Abs. 1 S. 1 4. BayIfSMV:
"Applicable to wholesale and retail establishments serving customers:
1. the operator shall take suitable measures to ensure that a minimum distance of 1.5 m between customers can be maintained.
2. the operator shall take suitable measures to ensure that the number of customers present in the shop at any one time does not exceed one customer per 20 m2 of sales area.
3. masks must be worn by staff, customers and their accompanying persons.
4. the operator must draw up a protection and hygiene concept and, if customer parking spaces are made available, a parking space concept, and submit it to the competent district administrative authority on request."


2. Can people continue to work from home? 

While we are working towards the reopening of society, as of 6 May 2020, it remains the case that everyone should work from home if they can do so, this in turn helps manage your corporate COVID-19 risk.  

Home workplaces are also subject to the employer's duty of protection and care towards his employees. The employer's basic obligations result from § 3 labour protection law (ArbSchG).

It is important that employers carefully train their employees and provide instruction on workplace ergonomics, time management, dealing with stress, etc.

In particular, the following must be observed: 

- The equipment provided: in principle, the employer is responsible for providing the necessary work equipment for homework and keeping it functional. 

 - The provision of office furniture and necessary technology, such as a laptop including the required programs, the guarantee of a telecommunication connection and the provision of necessary office material.

- Mental health / occupational stress: consider what support and advice you can offer your employees. How can you encourage your employees to stay in touch (e.g. through video conferencing and regular meetings)? How can you offer support in case of additional stress caused by working from home? 

- Problems of individual employees: without direct supervision, the risks for individual employees will increase.

3. Do you have any medically vulnerable employees, medically extremely vulnerable employees or employees whose family fall into one of these categories?

Employers must pay particular attention to workers who belong to a risk group. These groups should work at home. The occupational doctor may release workers belonging to a risk group from work if they are exposed to a hazard while carrying out an activity. According to § 3 Para. 1 of the Occupational Safety Act (Arbeitssicherheitsgesetz-ASiG), it is the task of the occupational doctors to advise the employer and the persons otherwise responsible for occupational safety and accident prevention on the assessment of working conditions. If these conditions change as a result of the pandemic situation, a reassessment of the conditions may be carried out. However, the employee may also temporarily take up another job or be released from partial duties in order to avoid individual risk. 

There are both data protection and employment issues such as in relation to equality: 
View our employment checklist >  
View our data protection checklist > 

4. When employees return the workplace, have you worked through the steps that the Federal Ministry of Labour and Social Affairs recommends as part of your COVID-19 risk assessment?

On 16/04/2020 the Federal Ministry of Labour and Social Affairs established the SARS-CoV-2 occupational safety standard. This is no law or ordinance and should be supplemented by the workplace protection authorities and can therefore be seen as a guidance for employers. 
However, it could lead to a compliance risk if the employers do not consider this standard as the workplace protection is an obligation of the employer.

- Principles: Provision of mouth-and-nose covers if minimum distance cannot be safely maintained; no persons with respiratory symptoms or fever on company premises.

- Development of a procedure for clarifying suspected cases (e.g. in case of fever).

- Development of a concept for operational measures:

  • Technical measures such as workplace design ensuring a distance (at least 1.5 m); regulations on cleaning and hygiene (e.g. provision of liquid soap and towel dispensers that are kind to the skin; adjustment of cleaning intervals, especially for sanitary facilities and common rooms); regular ventilation; office work in the home office if possible; reduction of business trips and face-to-face meetings to a minimum and provision of technical alternatives (telephone and video conferences).
  • Organisational measures such as ensuring sufficient protective distances (e.g. floor markings); personalised use of tools and work equipment and regular cleaning; working time and break arrangements that reduce personal contact (staggered working and break times; shift work); restricting the access of external persons to a minimum and documentation (time of entry and exit); instructions for action in suspicious cases.
  • Personal measures such as mouth-and-nose covering and protective equipment in the event of unavoidable contact with other people; instruction of managers on preventive and occupational safety measures and active communication; occupational medical precautions and protection of particularly vulnerable persons (possibly advice from company doctor).

5. Do I need to monitor employees health and well-being or do temperature checks/health screening before they work? 

The answer to this question is currently being discussed in many contexts. It may feel like a good idea to have temperature checks or health checks - but there are risks to privacy and data security. There is no mandatory obligation to perform temperature checks. 

That depends on the individual case. Among other things, fundamental rights affected as well as the reason (only one suspected case? Several proven cases?) and the type of health control must be taken into account. Arbitrary measures are inadmissible in any case.

In companies in which a works council exists, all regulations in the area of occupational health and safety are subject to co-determination, i.e. that the works council has a right of codetermination in the planned measures in accordance with § 87 para. 1 No. 7 Work Council Constitution (Betriebsverfassungsgesetz – BetrVG). In this respect, before each introduction of a measuring method, whether locally in the business or with the coworkers at home, a work agreement would have to be locked, over range of the measure, handling the determined data and consequences in case of the statement of an increased temperature. Without the prior conclusion of such a works agreement, any measurement of temperature among employees is inadmissible and the works council could therefore take legal action to prevent the introduction of temperature screening.
Further restrictions for the introduction of temperature screening follow from German data protection laws.

6. What to do in case of suspicion of coronavirus in the company?

Due to the extremely high risk of the coronavirus spreading, an infection must be reported. 

First step: Infected person sent for testing

First, the responsible health authority should be informed while the affected worker is separated from all others until a - preferably separate - transport to a site performing COVID-19 tests is organised. The employee must be released from work with pay until the results of the test are available.

Second step: Contact other employees that may require testing

Through appropriate surveys, it must be discovered which employees/people have had direct contact with the person concerned. These people are just as at risk as the infected person or the person suspected of being infected and, if necessary, must be sent for a COVID-19 test in the same way.

Third step: Remaining employees must work from home (where possible)

As a direct consequence, the employer must take measures to protect all other employees. Continuing to work as before is certainly no longer an option at this stage. In the worst case, the company must be closed and all employees are to be sent home against payment until the danger is over.

7. What about visitors and contractors?

Only really urgent visits are to be made. If the visit is indispensable, e.g. when carrying out emergency repairs, it must be ensured that social distancing is maintained. As far as possible, customer discussions should only be conducted by telephone, in writing or by video call.

8. Travel for work

In all federal states there is an obligation to wear masks (with different contents) when using public transport. Failure to comply with this obligation is considered an administrative offence and can be punished by a fine. You can find more details on the specific form of these obligations in your region on the page of your federal state >

9. Have you increased the frequency and depth of cleaning? 

It is important to ensure that cleaning measures are strengthened. By disinfecting all surfaces that are frequently touched (handles, hand terminals, keyboards, touch screens, fittings) regularly and at short intervals. Keep or obtain sufficient protective material (e.g. mouth-nose cover, gloves, disinfectant, etc.).

Practical steps for returning to the workplace

10. What protective measures should employers take?

We recommend that companies check compliance with and, if necessary, tighten up hygiene regulations in the company and inform the workforce about recommended behaviour such as reducing interpersonal contacts. To this end, a company agreement would be recommended in which behaviours for the event of an epidemic spreading are effective, e.g. wearing protective masks or regularly disinfecting hands. These behaviours can be formulated as commandments or prohibitions, and an employee can be warned if they are violated.

11. What should be made mandatory within a pandemic company policy agreement?

The material scope of an appropriate works agreement should cover all measures that are necessary in connection with the occurrence of a pandemic, in order to protect the health of employees. Concrete rules of conduct should reduce the risk of infection. The wearing of protective clothing or masks, regular hand disinfection and changing clothes when entering the company are particularly useful in this respect. Furthermore, it should be regulated that in the event of a pandemic, the employer may also assign their employees to work that is not contractually owed. In this respect, the right to give instructions can be concretised in terms of facts, location and time. A pandemic works agreement should also regulate the ordering of home or short-time work.

If you would like to understand what your business needs to consider from a data perspective please view our data checklist > 

If you would like to understand what your business needs to consider from an employment perspective please view our employment checklist > 

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