Mouth protection at the workplace

Mouthguards in the workplace are generally only necessary when the particular work environment, as well as the associated harmful agents that affect workers, require additional personal protective equipment. However, even in times of infectious diseases and in exceptional circumstances such as a global pandemic, additional protective measures such as mandatory wearing of masks at the workplace may be necessary.

But when are employees obliged to wear a mouth guard at the workplace? And who must bear the costs of this additional protective measure? In the following article you will find the answers to the most frequently asked questions about mouth protection in the workplace.

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Can an employer obligate the employees to wear a mouth guard??

According to §618 of the German Civil Code (BGB), the employer is obliged to protect each employee from possible dangers that could affect life and health. These so-called duties of care are based on regulations of the Occupational Safety and Health Act as well as the Workplace Ordinance and the regulations of the German Statutory Accident Insurance Fund.

According to §3 of the Occupational Health and Safety Act, the basic duties of the employer include ensuring and optimizing the safety and health of employees. Depending on the nature of the activity, the working environment, as well as the working substances that affect the employee, the employer must take appropriate protective measures. In this case, the employer has the obligation, within the framework of the risk assessment, to determine the protective measures required for the legally prescribed occupational health and safety. This includes technical, organizational and personal protective measures.

While the first two measures are to be considered as a matter of priority and are not related to individual employees, personal protective measures, on the other hand, are only to be taken if there are residual hazards for the employees despite the establishment of organizational and technical protective measures. The personal measures represent individual safety measures such as the wearing of personal protective equipment (PPE), gloves, protective gowns or even a mouth guard.

If, on the basis of the risk assessment, the employer comes to the conclusion that the wearing of a face mask is essential for ensuring occupational safety, he can arrange for this protective measure to be taken.

May an employee refuse to wear a face mask?

If the employer orders the wearing of a protective mask, this order falls under the so-called right to issue instructions, which is regulated in §106 of the Trade Regulation Act. Accordingly, the employer can determine the content, place and time of the work performance in more detail at his reasonable discretion. This means that the employer is entitled to issue additional service instructions that go beyond the regulations in the employment contract.

As long as the work instructions do not conflict with any interests of the employees worthy of protection and are justified by the underlying cause, the employee is basically obliged to comply with the additional regulation regarding health protection. Consequently, employees cannot refuse to wear a face mask, for example, in times of a pandemic. However, in companies that have a works council, the right of co-determination must always be observed.

If an employee refuses to follow work instructions despite the employer’s justified authority to issue instructions, the employer is entitled to consider consequences under labor law, such as a warning or dismissal.

Is the employer obliged to provide a mouth guard?

If the employer has come to the conclusion on the basis of a risk assessment or is obliged by special circumstances such as the outbreak of a pandemic to take further safety precautions in the company, the employer can impose a mask requirement in the workplace.

If an employer introduces additional personal protective measures, such as wearing a mouth guard, the employer is obligated under Section 3 of the Occupational Safety and Health Act to cover the cost of these measures. Accordingly, the employer must provide the protective masks free of charge. However, this regulation only concerns protection in the workplace. This means that employers do not have to provide their employees with mouthguards for private use or for commuting to work.

If, however, the hazard can be contained by other protective measures or if it is proven that this is not the case due to the respective work environment, the employer does not have to bear the costs for the additional protective clothing.

Can an employer prohibit employees from wearing a mouth guard?

If the wearing of a face mask is not necessary due to the working environment and the working materials used, but is desired by the employees due to special circumstances such as a flu epidemic, the employer cannot refuse this protective measure.

Because in view of the employer’s duty of care, the employer must ensure that employees can perform their activities without health risks. If the workplace poses an increased risk of infection due to a flu epidemic, employees may wear a mouth guard for their own protection.

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