Berlin Labor Minister Hubertus Heil (SPD) wants to oblige employers to let employees work more from the home office. In addition, the precautions in the companies against the corona pandemic are to be strengthened. This is provided for in the Federal Ministry of Labor’s draft for a Corona occupational health and safety ordinance, which is available to the Handelsblatt. This will further tighten the Sars-CoV-2 occupational health and safety rule. The heads of government from the federal and state levels made a corresponding decision on Tuesday evening.
Accordingly, employers should be obliged to offer employees home office if the so-called seven-day incidence exceeds a threshold of 50. This applies to employees in office or comparable activities “if there are no compelling operational reasons to the contrary”.
Even before the talks between Chancellor Angela Merkel (CDU) and the Prime Minister, Heil had announced that he would work on a corresponding ordinance in the event of an agreement. He wanted “more commitment” in the home office offer, said the minister.
Despite all efforts, the number of infections is still too high, according to the draft bill. “Since the possibilities for further contact restrictions and additional infection protection measures have largely been exhausted in many areas of life, additional and time-limited measures of occupational health and safety are indispensable as contributions to the health protection of employees”, it says in the explanation.
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Strict distance rules apply where it is not possible to work from home. If several people use an office, at least ten square meters must be available for each. In companies with more than ten employees, employers are required to divide the workforce into the smallest possible work groups.
Where these regulations cannot be implemented, the employer must provide ventilation or partition walls to protect the employees. Eating together in canteens or break rooms is prohibited with a few exceptions.
If the distance rules or the requirements for room occupancy cannot be complied with, the employer must provide medical face masks and employees are obliged to wear them.
In corona hotspots with more than 200 new infections per 100,000 inhabitants within seven days, the workforce in companies with at least 50 employees who are regularly present should be subjected to a weekly rapid antigen test.
However, this only applies if the rules on minimum distance and space cannot be adhered to or the employees regularly have to use public transport for business reasons. The ordinance will initially be limited to March 15, as Chancellor Merkel said on Tuesday evening.
The more stringent regulations will incur additional costs for the companies. The Ministry of Labor estimates one-off wage costs of almost 2700 euros per location for the planning and preparation of the rapid tests. Personnel costs of EUR 2.32 are added for each test, in addition to the proportionate wage costs of the employee, who has to wait around 20 minutes for the result to be available.
The Federal Association of German Employers’ Associations (BDA) reacted with “amazement” to the plans. “Only a few days after the Federal President, the trade unions and employers made a resolute and joint appeal to companies and employees, politicians are proposing a kind of substitute action for home office bureaucracy, which is beyond doubt beyond the action of the social partners in terms of effectiveness” criticized the association.
The general manager of the employers’ association Gesamtmetall, Oliver Zander, accused Labor Minister Heil of wanting to introduce his right to work from home, with which he had politically failed, through the back door. “Bringing this in under the label of fighting pandemic gives the impression that the minister is using the pandemic for party political purposes,” said Zander.
This is particularly noteworthy as the unions have meanwhile also spoken out against being forced to work from home. For example, the head of the Mining, Chemical and Energy Industrial Union (IG BCE), Michael Vassiliadis, emphasized on Monday that a state home office obligation was not feasible because too many exceptions would have to be formulated. “In the IG BCE sectors, we have worked out sustainable hygiene plans with the employers and have made maximum use of the home office,” explained Vassiliadis. The number of infections in operation is marginal, and the distance requirements in the large-scale systems can be easily observed.
Employment lawyers are also skeptical: “With the regulation, the government creates expectations among employees, but does not provide employers with a tool to implement home office legally,” says Michael Pils, partner at the Taylor Wessing law firm in Düsseldorf. It remains open, for example, what the compelling operational reasons are that make home office impossible. “Does the employer have to explain why it doesn’t work, or is it enough to say that the technical requirements are missing?”
In addition, not every employee has a decent job or an efficient internet connection at home. If he put forward these arguments, he could hardly be allowed to work from home. And finally, the regulation raises a number of legal follow-up questions, says lawyer Pils: “How can, for example, confidentiality or data protection be ensured, what about insurance cover in the home office if a proper risk assessment has not been carried out in relation to the home office?”
More: Interview with Minister of Labor Heil: “Not just any appeal, but a very clear announcement”