As part of their general duty of care (Fürsorgepflicht), employers have to make sure that employees are protected at the workplace against dangers to their life and health. In the course of the coronavirus pandemic, particular occupational safety measures arise for which the employer is responsible and whose observance they should absolutely ensure. Because if, when an employee becomes infected, it is shown that the employer did not provide the required occupational safety standards, in the worst case they can be held liable for the illness and claims for damages can be brought against them.
The employer's statutory duty of care
The employment contract creates rights and obligations for both sides, that is for employer and employee. While paying wages is one of the employer's main obligations, the employment contract also gives rise to numerous ancillary obligations. One ancillary obligation on the employer is the duty of care, which follows from Section 618 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) and from further employment law provisions such as the German Occupational Safety Act (Arbeitsschutzgesetz) and the German Working Hours Act (Arbeitszeitgesetz, ArbZG). Under the duty of care, the employer has to make sure that their employees are protected at the workplace against physical and psychological dangers. This would include, for example, providing appropriate protective equipment when handling dangerous tools, but also taking measures to protect against psychological violence such as harassment or bullying.
Special protective measures in times of the coronavirus pandemic
At present this duty of care requires employers' particular attention: comprehensive precautions to protect against infection with the coronavirus are also among the measures that fall within the employer's area of responsibility. The extent of the protective measures required in each case depends on the current risk assessment and only becomes concrete when there is a suspected case in the business. As a matter of principle, however, the employer should ensure compliance with the SARS-CoV-2 occupational safety standards published by the German federal government in April this year to protect employees at the workplace.
The protective measures include, for example, airing the workplace regularly, providing disinfectant, liquid soap and towel dispensers, and regular cleaning of sanitary facilities, handrails and door handles.
Workstations are to be arranged so that the minimum distance of 1.5 metres can be maintained. This may call for special plans for staggered working and break times and for extended home-office arrangements for work that can be done anywhere. For activities involving contact with the public, the minimum distance is to be ensured by transparent partitions. Where no distance can be ensured, wearing a mouth and nose covering is recommended.
The employer should inform their employees about possible risks and recommended courses of action. These include, for example, how to behave in contact with customers, avoiding business trips that are not strictly necessary, and the employee's obligation to report relevant symptoms and suspected cases in their private environment.
The contested question of liability
One important question that has not yet been conclusively settled is that of liability for damage attributable to a Covid-19 infection at the workplace. Normally the statutory accident insurance covers damage at the workplace. Since the classification as a pandemic, however, it has argued that no clear connection between the work activity and the infection can be shown and that it is therefore not an occupational accident that the insurance has to cover. As this legal position has not yet been clearly settled by the social courts, the employer could currently also be held liable for personal injury, provided that negligent conduct in relation to the required protective measures can be proven.
What does that mean for employers? Tips on handling the duty of care
In concrete terms, this uncertain legal position means that employers should ideally document every protective precaution they take in the greatest possible detail. That is the only way to prove, in case of doubt, that comprehensive precautions to protect the workforce at the workplace were observed and to rule out liability.
That includes, for example, documenting in writing which people were on the premises at the same time and were thus exposed to a potential risk of infection at the workplace. If an infection occurs, the chain of infection can then be traced and suspected cases followed up directly. It is also advisable to set up fixed workstations for employees in order to keep points of mutual contact to a minimum.
How can the bureaucratic effort be minimised?
Keeping daily lists of which people were in the building at what time can be very laborious for employers and creates considerable extra work. clockin's office time tracking gives employers ideal support with this bureaucratic effort: at the start of work, employees simply log into the clockin app on a tablet in the entrance area. That way the employer has an overview at all times of which employees are on the premises at the same time and can pass this data on to the authorities if needed. All relevant data is documented digitally with a single click in the app, and laborious manual documentation is avoided. We will gladly advise you, with no obligation, on how you can start using clockin in your company soon.
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