The new SARS-CoV-2 occupational health and safety regulation rolls back many pandemic-related workplace protections. High court rulings have also been handed down.
Since March 19, 2022, the federal government has amended a variety of corona regulations. The legislator has thus reacted to the changed infection incidence and the possibilities of dealing with the coronavirus. Along with this, the new version of the SARS-CoV-2 occupational health and safety regulation includes new requirements for occupational infection control. On the legal side, too, various courts have issued rulings, some with far-reaching consequences.
On March 31, 2022, ProdktionNRW held a virtual information event on the changes to the SARS-CoV-2 Occupational Health and Safety Ordinance and an overview of the current case law in labor law.
New measures for occupational health protection
Fabian Seus, speaker of the VDMA legal department, first highlighted the changes to the SARS-CoV-2 occupational health and safety regulation. According to the Federal Ministry of Labor and Social Affairs, this contains the necessary measures for occupational infection control. According to this, the employer must determine the risk assessment and present this in an operational hygiene concept. Basic protection measures at the workplace are no longer prescribed in the Occupational Health and Safety Ordinance, but are taken up as exemplary measures. These measures relate, for example, to compliance with the minimum distance or the reduction of operational personal contact by technical or organizational means.
Some questions can be derived from the new Occupational Health and Safety Ordinance that remain unanswered in the Ordinance. For example, the employer can still introduce a 3G model in the workplace – for example, on the basis of house rights or as a measure to protect the workforce. However, the company has few options to enforce the 3G regulation should an employee resist the requirement. In the previous Infection Protection Act, possibilities such as loss of pay were clearly regulated.
In the ensuing discussion, it became clear that many companies are maintaining the previous company measures for infection protection for the time being. In some cases, the companies receive little understanding for the measures from their own workforces, as many measures have been completely dropped in other areas of public life. Individual measures can be defined for the company by means of a company agreement, but these should be based on the principle of proportionality. Also, all personal data around vaccination and recovery status for the 3G model should be deleted, even if it has to be collected again in case of quarantine. As a general rule, the legal collection of personal data must not be used for other purposes within the company.
Current judgments on labor law
Dr. Christian Hess, consultant of the VDMA legal department, then went into detail on labor law rulings in connection with the pandemic. In recent months, different courts in Germany have dealt with the corona measures, but also with other areas.
For example, on September 8, 2021 (5 AZR 149/21), the Federal Labor Court issued a ruling on the evidentiary value of a certificate of incapacity for work. The certificate of incapacity for work has so far been almost untouchable by the company. The ruling states the following: if an employee gives notice and submits a certified certificate of incapacity for work for the duration of the notice period, the company may doubt its probative value. The reason for this lies in the certified incapacity for work, which precisely covers the duration of the notice period. An event participant is confronted with exactly this case in her own company. This ruling provides the person with a promising legal basis for argumentation in this context.
The final discussion focused on protection against dismissal during the probationary period. A judgment of the European Court of Justice ruled on February 10, 2022 (Case No. C-485/20 HR Rail) on the termination of employees with severe disabilities during the probationary period. Building on the judgment, there was a discussion on how to deal with pregnancy during the probationary period. The group of participants pointed out that maternity protection is particularly protected and that extending the probationary period after pregnancy is a controversial measure. The thematic exchange between the participants illustrated the extensive interest in the North Rhine-Westphalian mechanical and plant engineering sector in the information event on labor law.
More Information
- FAQ des Bundesministeriums für Arbeit und Soziales
- Handlungsempfehlungen der Bundesanstalt für Arbeitsschutz und Arbeitsmedizin
- SARS-CoV-2-Arbeitsschutzregeln
Veranstalter
Die Veranstaltung wurde von ProduktionNRW angeboten. ProduktionNRW ist das Kompetenznetz des Maschinenbaus und der Produktionstechnik in Nordrhein-Westfalen und wird vom VDMA NRW durchgeführt. ProduktionNRW versteht sich als Plattform, um Unternehmen, Institutionen und Netzwerke untereinander und entlang der Wertschöpfungskette zu vernetzen, zu informieren und zu vermarkten. Wesentliche Teile der Leistungen, die ProduktionNRW erbringt, werden aus Mitteln des Europäischen Fonds für Regionale Entwicklung (EFRE) gefördert.