What is the German Occupational Safety Act and what do you need to observe?

What is the German Occupational Safety Act?

In essence, the German Occupational Safety Act (Arbeitsschutzgesetz, ArbSchG) is a German law that safeguards the health of all employees. Its full title is: “Gesetz über die Durchführung von Maßnahmen des Arbeitsschutzes zur Verbesserung der Sicherheit und des Gesundheitsschutzes der Beschäftigten bei der Arbeit” – the Act on the Implementation of Occupational Safety Measures to Improve the Safety and Health Protection of Employees at Work.

In detail, the act covers:

• the employer's duties
• requirements for working conditions
• rules for cooperation
• conduct in emergencies (first aid, medical precautions)
• employees' duties and rights
• provisions on fines and penalties

Under the ArbSchG the employer is obliged: “1. to ensure a suitable organisation and provide the necessary resources, and 2. to make arrangements so that the measures are observed where necessary in all activities and integrated into the company's management structures, and so that employees can meet their duties to cooperate.” (Section 3(2) ArbSchG) In essence this means that every employer is bindingly obliged to ensure that employees are protected. Whatever activity they are carrying out, the employer has to provide the necessary resources. That, incidentally, also includes documenting these measures and their implementation.

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What does the German Occupational Safety Act regulate?

Alongside classic hazard potentials (such as chemical, biological or physical hazards), the ArbSchG also covers other hazards. This includes the design of work and production procedures, work processes and how they interact.

Above all it is meant to prevent the individual protective measures for each employee being neglected. It applies at (almost) all workplaces and covers not only physical but also mental harm.

Special protection applies to:

• apprentices
• judges
• workers in sheltered workshops for people with disabilities
• soldiers
• civil servants
• miners
• seafarers
• homeworkers
• women (maternity protection)

What does human-centred work design mean

This section of the ArbSchG is meant to take in the mental strain of work as well. The act puts it like this: “The organisation and implementation of work procedures, the work process and the working environment, with the aim of adapting work as far as possible to the mental and physical characteristics, the capacity and the needs of the people doing it.”

That means: employers are also responsible for the mental strain of work and bear responsibility for its consequences.

The effect of work design on employees' health

A negative working environment can have serious consequences not only for employees but also for their performance. Working conditions that promote health can have a big influence on employees' satisfaction and on how much stress they experience. On top of that, satisfied employees are more motivated and more productive.

The more monotonous the work and the more restricted employees feel, the higher the likelihood of illnesses such as mental disorders. Well-designed work, on the other hand, has a positive effect on employees' health.

How does occupational safety have to be carried out?

1. First of all, carrying out and complying with occupational safety is the employer's duty. That includes not only ensuring human-centred working conditions but also ensuring that the occupational safety rules are followed. In other words, the employer has to check and document that the occupational safety requirements are being met in the company – for example through working time tracking.

2. If the employee wants to make changes to working conditions, they have to obtain the works council's approval. The works council has extensive codetermination rights when it comes to internal company measures.

3. From 20 employees upwards, every company has to appoint a safety officer.

4. Responsibility for checking these requirements lies with the trade supervisory authorities (Gewerbeaufsicht) of the municipalities and the district. They monitor the extent to which companies meet the requirements for healthy working conditions.

Instruction by employers

The employer is obliged to instruct employees sufficiently and regularly on health protection and safety at work. The instruction has to take place:

• when areas of responsibility change
• after accidents
• before an activity is taken up
• and when new technologies/work equipment are introduced

in each of these cases.

The aim of this instruction must be to strengthen motivation for safety-conscious behaviour, to assign employees correctly to the relevant activities and to provide employees with comprehensive information about possible dangers and health risks at the workplace.

What counts as a breach of the German Occupational Safety Act?

A breach of occupational safety is treated as a regulatory offence; it can result in a fine of up to €30,000

If the rules are persistently and repeatedly disregarded, this is regarded as intentional conduct (because it puts an employee's health or life at risk) and, alongside a fine, a prison sentence of up to one year can be imposed.

Where documentation of occupational safety is poor or missing, the occupational safety schedule of fines provides for a fine of €5,000. Depending on the circumstances of the infringement, this standard rate can also be higher or lower.

What can count as a breach:

• traffic routes are unsuitable or defective
• protective devices or protective measures are unsuitable or missing
• protective devices or protective measures are incomplete
• a danger area is unsecured or not marked
• firefighting equipment is unsuitable, inadequate or missing
• escape routes and emergency exits are unsuitable or defective
• safety marking of escape routes or emergency exits is inadequate or missing
• lighting is inadequate or missing
• room temperatures that are healthy are not provided, or are too high or too low
• a screen or display device is unsuitable
• a toilet room or a mobile connection-free toilet cubicle is missing or unusable
• a break room or break area is inadequate or missing
• work was not stopped by the employer even though an immediate and significant danger had arisen
• first aid supplies are inadequate or missing
• employees were not instructed before taking up the activity

Because the obligation to ensure occupational safety lies with the employer, the employer is also liable for breaches. Employees cannot be held liable for offences.

The Occupational Safety Act and the Working Hours Act

As in the ArbSchG, the employer's duty of care is also laid down in the German Working Hours Act (Arbeitszeitgesetz, ArbZG). The latter, however, relates primarily to the arrangement of working hours. The ArbSchG is therefore extended by the ArbZG. More precisely, the point of overlap lies in Section 3 ArbSchG quoted above, which points out that the employer has a certain duty of care towards the employee.

You can find more detailed information on the ArbZG and topics such as rest periods, Sunday work and maximum working hours here.

In September 2022 the Federal Labour Court (Bundesarbeitsgericht), citing this section, declared an obligation to record working time for all German companies. The reasoning, that documenting occupational safety measures is already a legal obligation and therefore so is documenting working hours, was published in December 2022.

So since then, for example, an obligation to record working time has already applied in Germany, which is now also due to be extended by your act on electronic working time recording.

You can find all the information on the obligation to record working time and the draft act here.

Protect yourself now

With the obligation to record working time and the draft act on electronic time tracking, companies in Germany without a time tracking system are no longer legally compliant - or could certainly run into problems in the near future. With clockin you always stay on the safe side, whether you are a small or a mid-sized company.

clockin gives you time tracking via app. With a single click you are clocked in, and just as quickly clocked out again. Hours are recorded to the second, so you don't have to worry about time going missing.

At the end of the month the system produces an automatic timesheet, can calculate special rules such as premium pay automatically and takes the bureaucratic extra work behind standby duty off your hands.

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