Germany: Requirement to Offer Remote Work Option Enters into Force

(Feb. 2, 2021) On January 27, 2021, the Occupational Safety Ordinance (Home Office Ordinance) entered into force in Germany. The Home Office Ordinance requires employers to offer eligible employees the option to work remotely to minimize the risk of contracting COVID-19 at work and to ensure the safety and health of all employees. Employees are strongly encouraged to accept that option but are not required to do so. Furthermore, the ordinance contains additional rules to safeguard employees whose jobs cannot be performed remotely. The Home Office Ordinance applies to both private companies and public bodies.

The Home Office Ordinance will expire on March 15, 2021. (Home Office Ordinance § 4.)

Content of the Home Office Ordinance

Remote Work Option

The Home Office Ordinance states that employers must offer employees who have a desk job or perform similar work the option to work remotely unless there are compelling operational reasons against doing so. (§ 2, para. 4.) It is up to the employer to prove that these reasons exist. However, the ordinance does not define what “compelling operational reasons” are.

Additional Safety Measures

Employers are required to review and, if necessary, adjust their current COVID-19 safety measures. (§ 2, para. 1.) Furthermore, they must take all appropriate technical and operational steps to minimize personal contact between employees. The usage of office space by several people at the same time must be kept to what is strictly necessary for business operations. (§ 2, para. 2.) Business meetings involving several people must be reduced to what is strictly necessary for business operations and should, if possible, be held virtually. If virtual meetings are not possible, employers must take other appropriate protection measures, such as ensuring sufficient air circulation and putting up barriers between people. (§ 2, para. 3.)

If several people must use office space at the same time, employers must ensure that each employee has at least 10 square meters (107.6 square feet) of space. If this is not possible due to the nature of the work performed, employers must take other appropriate protection measures, such as ensuring sufficient air circulation and putting up barriers between people. (§ 3, para. 5.) Companies that have more than 10 employees must divide employees in groups that are as small as possible. Personal contact between the groups and changes to the members of the groups must be kept to a minimum. (§ 3, para. 6.)

Finally, employers are required to provide on-site employees with medical grade face masks, FFP2-masks, or equivalent masks, as described in the annex of the ordinance, if minimum distance requirements cannot be observed or when the type of work exposes the employees to a heightened risk of viral aerosol emission. Employees must wear the provided masks. (§ 3.)

Similar Measures in Other European Countries

Other countries in Europe, such as France, Belgium, Scotland, Portugal, and Switzerland, have also mandated a duty to work from home to contain the spread of COVID-19 and to safeguard the health of employees. Switzerland, for example, enacted an ordinance that requires employers to allow particularly vulnerable employees to work remotely. The ordinance entered into force on January 18, 2021, and will expire on February 28, 2021.

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