New occupational health and safety regulation gone into effect on January 27, 2021 – Employers must now allow home office

The new Corona Occupational Health and Safety Regulation issued by the German Federal Ministry of Labor and Social Affairs entered into force on January 27, 2021. This regulation intends to help further reduce the risk of infection in the workplace through additional measures. The most important change for employers is a newly added obligation to offer employees to perform their work in their homes if their field of work generally allows for tasks to be performed from the home office and there are no compelling operational reasons for office work.

Apparent reluctance to send employees to the home office in second lockdown

With this obligation for employers, the German government reacts to what appears to have been a rather restrained use of mobile working during the second lockdown in Germany. According to current surveys, the use of mobile work tools has been significantly lower since November 2020 than during the first lockdown. According to these surveys, around 27% of employees worked from their home offices in spring 2020, compared with only around half as many employees (14%) since November 2020.

When must employers offer home office to the employees?

Employers are now obliged to offer employees the option to work from their home office if their tasks allow for it. The employer’s obligation is limited to the offer; the employee does not have to accept it.

The first question employers must answer is the one of abstract suitability, in layman terns, whether the specific activity can be performed in a suitable manner from the home office. This will apply to most activities performed in an office. However, it is conceivable for some office tasks to be unsuitable for performance from home. If, for example, an office worker is responsible for processing incoming physical mail, they must be on site at least some of the time to receive it. Thus, other office activities are certainly conceivable, which cannot be shifted to the domestic area.

The employer does not have to offer home office for suitable work fields if there are compelling operational reasons against doing so. In our view, defining these “compelling operational reasons”, which the legislator leaves rather open, will cause the most problems in practice. In our view, possible conflicting reasons could be of a technical nature, for example if the necessary technical infrastructure for working at home is not available in the company due to the lack of mobile devices or network access. Another compelling reason against home office work might be those rooted in confidentiality, for example when dealing with company and business secrets that are forbidden from leaving the company premises. In order to assess whether there are compelling operational reasons against offering home office to employees, it is always necessary to carefully consider each individual case.

The new regulation will be valid for a limited period until March 15, 2021, but it is not unlikely that its validity will be extended, depending on the further development of the pandemic situation.

Other key points of the regulation are:

• If it is unavoidable that rooms are used by several employees at the same time, the room must be sized so that at least 10 m2 are available to each employee
• In companies with 10 or more employees, the employees must be divided into fixed work groups that are as small as possible
• Medical face masks are to be provided by the employer

Can fines be imposed?

All of the measures contained in the regulation apply nationwide and regardless of a specific regional infection incidence. The regulation itself does not provide for any means to implement the measures. However, § 22 (3) ArbSchG (German Occupational Health and Safety Act) gives the competent state authorities for occupational health and safety the option of implementing legal regulations regarding occupational health and safety by ordering individual measures. Thus, it also seems theoretically conceivable for the competent state authority to determine in specific individual cases that home office must be offered for a specific position in a specific company. If the employer then fails to comply with such a determination, fines could be imposed or further legal measures taken as a last resort.

Do you have any further questions about the new occupational health and safety regulation in Germany? Please feel free to contact us.