The Federal Government and federal states have agreed to extend the lockdown until 14 February 2021 and to further step up measures to fight coronavirus.
As part of this move, the SARS-CoV-2 Occupational Health and Safety Ordinance (Corona-ArbSchV, Covid Occupational Health and Safety Ordinance) drafted by the Federal Ministry of Labour was published in the Federal Gazette on 22 January 2021. The ordinance entered into force on 27 January 2021 and expired on 15 March 2021.
Pursuant to section 1 of the new Corona-ArbSchV, the aim is to minimise the risk of infection with the SARS-CoV-2 coronavirus at work and to protect the safety and health of workers. This requires an even stronger commitment from the business community with regard to contact restrictions.
Contrary to reports in the specialist press, the ordinance does not stipulate an obligation to implement the required measures from a seven-day incidence of 50 or higher as was stated in the draft bill.
The government draft of the ordinance in the form now adopted does not contain any such value; in accordance with its objective, it instead states here that the measures to be taken should effectively and purposefully limit the risk of infection at the workplace even with rising seven-day incidence values and potentially more easily transmissible virus variants.
The occupational health and safety ordinances according to section 18 (1) and (2) of the Occupational Health and Safety Act (ArbSchG, Arbeitsschutzgesetz) and other federal‑state regulations along with the SARS-CoV-2 Occupational Health and Safety Rule of 20 August 2020 remain unaffected by the ordinance and continue to be valid as already effective prevention instruments.
These measures in the fight against the pandemic are already being implemented:
- Compliance with the distance rule, minimum distance of 1.5m to others
- Use of partition walls
- Use of remote contacts
- Increased ventilation
- Access control and occupancy reduction
- Reviewing the offer to work from home
- More surface cleaning
- Additional hand hygiene (employers must provide liquid soap and towel dispensers in sanitary rooms)
Extended measures for reduced contact in business operations
Section 2 of the new Corona-ArbSchV obliges employers to take the following additional measures for contact reduction at the workplace:
- The employer must review, update and document a risk assessment with regard to any additional infection control measures required at the workplace.
- The simultaneous use of rooms by several persons must be reduced to the minimum necessary to operate business.
- If simultaneous use of rooms by several persons is required, each person in the room must have at least 10 square metres of space, in as far as the work to be carried out permits this.
- In companies with a workforce of ten or more, employees must be divided into fixed working groups that are as small as possible; staggered working hours must be made possible.
In order to implement the desired restriction of personal contacts, all appropriate technical and organisational measures must be implemented. Information technologies for performing activities should be prioritised where possible.
If the above measures are not possible for operational reasons, other protective measures, such as suitable partitions between staff or work areas and sufficient ventilation must be ensured.
If the employer cannot comply with the requirement for room occupancy according to section 2, or if it is not possible to maintain the minimum distance of 1.5m, or in the case of work carried out with increased aerosol emissions, the employer is required to provide medical face masks, FFP2 masks or comparable masks. Employees are obliged to wear these masks!
The employer must check the labelling on the masks used, which are referred to in the annex to the Corona-ArbSchV. According to the annex, the following masks (among others) are marketable and common in Germany:
- FFP2 and comparable:
- Regulation (EU) 2016/425
- DIN EN149:2001+A1:2009
- BMG/BfArM/TüV test principle
FFP2 masks without a breathing valve are to be used. Masks with an exhalation valve may only be worn if all contact persons also wear a respiratory mask (with valve).
Core of the ordinance: Working from home – mandatory or voluntary? And who does it apply to?
Public perception of the core statement in the catalogue of measures in the ordinance is proactive action on the part of employers to enable staff to work from home. Section 2 of the ordinance reads:
“In the case of office work or comparable activities, the employer shall offer employees the possibility to carry out these activities from home if there are no compelling operational reasons to the contrary.”
The ordinance does not say what “compelling operational reasons”. Employers are therefore strongly advised to re-evaluate and document in writing where in their company employees can be offered the option to work from home (teleworking – not mobile working!).
If there are operational reasons why working from home cannot be implemented, the employer must explain these reasons in accordance with section 22 (1) ArbSchG when requested by the competent authority.
This is not linked to a subjective right of legal action for employees as is otherwise customary in occupational health and safety law. According to the ordinance, the occupational health and safety authorities of the federal states and the accident insurance institutions monitor compliance with the legal requirements.
The competent authority may request that the employer or the persons in charge provide the information and documents necessary for the performance of their supervisory duties.
No obligation to work from home
The ordinance does not impose any obligation on employees to work from home when this is offered by employers. In order to work from home, the employee’s home must meet the physical and technical requirements and an agreement regarding working from home must have been reached between the employer and the employee, for example, by way of an employment contract clause or a company agreement.
The parties to the agreement are free to determine the form of these agreements; in particular, there is no requirement to agree on and set up a teleworking workplace in accordance with section 2 (7) of the Workplace Ordinance (ArbStättV, Arbeitsstättenverordnung). Employers are advised to document the offer and, if applicable, the employee’s rejection of the offer.
Improved tax depreciation – Immediate depreciation for digital assets with retroactive effect as of 1 January 2021
On 21 January 2021, the Federal Government and federal states agreed on tax relief for purchases of digital assets as an incentive for digital upgrading to facilitate working from home.
The new depreciation rules are to apply in particular to the costs of computer hardware, such as printers, scanners, display units and software. These and other assets “are no longer subject to depreciation”, the Finance Ministry paper states. “Instead, the costs can be fully deducted for tax purposes in the year of acquisition or manufacture.” A useful life of one year could be justified with increasing rapid technical progress in this segment.
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