Currently no nationwide general mask requirement for workers
Even if the wearing of a mouth-nose covering is also discussed in the company due to the currently rising Corona infection figures, there is currently no Germany-wide general mask obligation for employees. However, there are state-specific corona ordinances, some of whose regulations require employees to wear a mouth-to-nose mask in certain areas, such as salesrooms and doctors’ offices.
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The Berlin Senate, for example, has introduced a 3. October 2020 introduced a mask obligation in office and administrative buildings, unless the employee is in a fixed place and the minimum distance of one and a half meters can not be safely maintained. So when working at a fixed desk, the regulation does not apply. However, masks are compulsory in the corridors, in the coffee kitchen or on the way to the toilet, for example, if the minimum distance cannot be maintained
Employers must observe a graduated protection concept when introducing mandatory masks
According to § 3 of the Occupational Health and Safety Act (ArbSchG), the employer is obliged to take protective measures where a hazard exists in the specific working and living situation of the employees. In this respect, it must observe the following graduated protection concept:
- If it is not possible to avoid hazards, the employer must take technical measures. To protect against infection with the Corona virus in the company, the erection of partition walls can be considered.
- If technical measures are not sufficient or not possible, the employer must take organizational measures. Separate working and break times could, for example, be organized to counter the risk of infection with the Corona virus.
- Personal measures, such as the obligation to wear a mouth-nose covering, affect workers the most compared to technical and organizational measures. Therefore, the employer may only use them if the organizational measures do not provide sufficient relief.
In other respects, the employer must take into account the state of the art as well as occupational medicine and occupational science findings when deciding on the particular measure to be taken.
These findings regarding appropriate handling of the Corona virus were summarized by the Federal Ministry of Labor and Social Affairs in the report published on 16. The employer shall comply with the occupational health and safety standard published on April 11, 2020 and the occupational health and safety rule of April 11, 2020 that substantiates this standard. August 2020 compiled. According to the occupational health and safety standard, mouth/nose coverings should be provided and worn in the event of unavoidable contact with other persons or if protective distances cannot be maintained. According to the occupational health and safety rule, if technical and organizational protective measures cannot minimize the risk of infection at work, individual protective measures, which may include the use of mouth-nose coverings, medical face masks, filtering half masks and face shields, shall be implemented.
Even though the regulations contained in the occupational health and safety standard and rule are not binding, an employer who follows them can assume that he or she is complying with the occupational health and safety requirements. If the employer decides on other measures, these must at least provide the same level of safety and health protection for the employees.
Ensure breaks from mandatory masking
If the employer orders the wearing of a mouth/nose covering in the company, he must take into account that the use of the mouth/nose covering can lead to greater stress for the wearer, as it makes breathing more difficult.
Against this background, employees must be granted breaks from the obligation to wear the mouth/nose covering during which they can take it off. At the same time, however, the risk of infection must not increase during these breaks. Therefore, breaks may be taken, for example, in rooms where adequate protective distances can be maintained.
In this context, the employer should post appropriate work or operating instructions in the workplace. In addition, the employer must issue suitable instructions to the employees and inform them of the protective measures taken.
Observe the works council’s right of co-determination
If a works council is responsible for the company in question, it has a right of co-determination in the introduction of mandatory masks under Section 87 (2) of the German Occupational Health and Safety Act. 1 no. 7 of the German Works Constitution Act (BetrVG). The right of co-determination relates, for example, to the framework conditions of the risk assessment and instruction as well as to protective measures in the event of concrete hazards. Insofar as these topics are affected, the employer and works council must accordingly conclude a works agreement. These then have a direct binding effect on the employees. If the parties to the agreement cannot reach an agreement, a conciliation body shall decide.
Employer must provide mouth-to-nose covering if it orders mandatory masking
If the employer effectively mandates that employees wear mouth-to-nose coverings on the job, the employer must provide them to employees.
If employees use their own mouth and nose coverings, the employer must reimburse them for the costs incurred.
Consequences under labor law possible if employee violates mask obligation
An employee violates his or her duties under the employment contract if he or she fails to comply with the employer’s effective instruction to wear a mouth-to-nose covering on the company premises. Therefore, the employee concerned risks a warning. In the event of a repeated violation, the employer can even issue a termination for behavioral reasons.
On the other hand, there are no consequences under labor law if the employer’s instruction to wear a mouth-nose mask was ineffective. A corresponding instruction may be invalid, for example, because it disregards the graduated protection concept. In the event of a breach of an invalid instruction, the employee does not commit a breach of duty under the employment contract. For this reason, the employee’s conduct cannot be penalized under labor law.